E.A.HAWKINS  > 


UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


Gift  Of 

E.  A.  Hawkins,  Jr. 


T  H  FLOOD  & 

•tnv  BOOKSELLERS, 


A  TREATISE 


ON  THE 


LAW  OF  IRRIGATION 


COVERING 
ALL  THE  STATES  AND  TERRITORIES 


WITH  AN 


APPENDIX  OF  STATUTORY  LAW 


BY 

JOSEPH    R.  LONG,  A.  B.,  B.  S.,  LL.  B. 

OF  THE   DENVER    BAR 


ST.  PAUL 

KEEFE-DAVIDSON   LAW    BOOK    CO. 

1901 


J 


r 

L 
1901 


Copyright  1900 
by  JOSEPH  R.  LONG. 


Webb  Publishing  Co.  Press,  St.  Paul. 


PREFACE. 


In  this  volume  I  have  endeavored  to  present,  concisely  and  yet 
fully,  the  American  law  of  irrigation.  My  aim  has  been  to  state 
the  law  as  it  is  rather  than  the  law  as  it  should  be.  It  would  have 
been  easier  to  make  a  larger  book  by  including  in  the  text  long  ex- 
tracts from  judges'  opinions,  as  is  sometimes  done,  leaving  the 
reader  to  work  out  the  law  for  himself  from  this  mass  of  material, 
but  I  have  preferred  to  give  instead  the  result  of  my  own  study  of 
the  cases.  This  course  has  meant  more  work  for  myself,  but,  I 
hope,  not  without  a  corresponding  increase  in  the  usefulness  of  the 
book. 

A  conscientious  attempt  has  been  made  to  cite  all  the  cases  on 
the  subject,  and  I  believe  the  collection  is  practically  complete. 
Except  where  otherwise  noted,  only  irrigation  cases  have  been  in- 
cluded. Cases  from  other  branches  of  the  law  of  water  rights 
might  frequently  have  been  cited  in  support  of  the  text,  but  so  far 
as  possible  I  have  chosen  to  confine  myself  strictly  to  the  subject 
indicated  by  the  title  of  the  wojk.  But  although  this  book  treats 
of  the  Law  of  irrigation  only,  it  may  be  not  without  interest  to  those 
concerned  with  other  phases  of  the  general  subject  of  water  rights, 
for  in  many  respects  the  law  is  the  same,  whatever  the  particular 
use  to  which  the  water  is  put.  This  is  especially  true  of  the  doc- 
trine of  appropriation,  which  is  fully  treated  in  this  work. 

In  the  Appendix  the  full  text  of  the  irrigation  statutes  of  gen- 
eral interest  and  application  has  been  given,  with  the  substance  of 
or  reference  to  other  statutes  pertaining  to  the  subject. 

I  desire  to  acknowledge  my  indebtedness  to  the  Hon.  John  F. 
Shofroth,  M.  C.,  for  his  courtesy  in  securing  for  me  valuable  gov- 
ernment publications;  to  the  Edward  Thompson  Company,  publish- 
ers of  the  American  &  English  Encyclopedia  of  Law,  for  permis- 
sion to  make  certain  use  of  an  article  on  irrigation  law  prepared  by 
me  for  that  work;  and  especially  to  Mr.  Joseph  H.  Eaton,  of  the 
Denver  bar,  who. has  read  the  entire  work  in  manuscript,  and  made 
many  helpful  and  valuable  suggestions. 

J.  R.  L. 
Denver,  Colorado,  November  1,  1900. 


.. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

INTRODUCTORY. 

1.  Definition  of  Irrigation. 

2.  Necessity  for  Irrigation. 

3.  Irrigation  as  a  Natural  or  Artificial  Want. 

4.  Use  of  Water  for  Irrigation  as  a  Public  Use. 

5.  Rise  and  Growth  of  Irrigation  Law. 

6.  Two  Systems  of  Irrigation  Law. 

7.  Scope  of  Present  Work. 


CHAPTER  II. 

THE   DOCTRINE   OF  RIPARIAN   RIGHTS. 

8.  Scope  of  Present  Chapter. 

9.  General  Statement  of  Doctrine  of  Riparian  Rights. 

10.  In  What  States  in  Force. 

11.  Right  of  Riparian  Owner  to  Use  Water  of  Stream  for  Irri- 

gation. 

12.  Nature  of  Right. 

13.  Right  Limited  to  Riparian  Lands. 

14.  What  Lands  are  Riparian. 

15.  Measure  of  Right — Use  must  be  Reasonable. 

16.  What  is  a  Reasonable  Use. 

17.  No  Right  to  Use  Entire  Flow  of  Stream. 

18.  Relative   Rights   of  the   Several   Proprietors. 

19.  Return  of  Surplus  Water  to  Channel. 

20.  Point  of  Diversion  and  Return. 

21.  Right  to  Water  Artificially  Developed. 


CONTENTS. 
CHAPTE2,   III. 

THE   DOCTRINE   OF   APPROPRIATION. 

I.    .THE  RIGHT  OF  APPROPRIATION. 

22.  Acquisition  of  Water  Rights  by  Appropriation. 

23.  Origin  of  the  Doctrine  of  Appropriation. 

24.  Constitutionality  of  Statutes  Authorizing  Appropriation. 

25.  Extent  of  Application  of  the  Doctrine  of  Appropriation  in  the 

Several  States. 

II.     APPROPRIATION  UNDER  ACTS  OF  CONGRESS. 

26.  Appropriation  of  Water  on  the  Public  Domain. 

27.  How  Existence  of  Water  Right  on  Public  Domain  is  Deter- 

mined. 

28.  Relative  Rights  of  Appropriator  of  Water  and  Grantee  of 

Land. 

29.  Same — Appropriation  Subsequent  to  Grant. 

30.  Same — When  Rights  of  Grantee  Attach. 

III.     WHAT  WATER  MAY  BE  APPROPRIATED. 

31.  General  Statement — Natural  Streams  Subject  to  Appropria- 

tion. 

32.  What  Constitutes  a  Stream  or  Watercourse. 

33.  Percolating  Waters   and   Subterranean   Streams. 

34.  Navigable   Streams. 

IV.     WHO  MAY  APPROPRIATE  WATER. 

35.  Who  may  Appropriate  Water. 

V.     How  WATER  is  APPROPRIATED. 

36.  The  Elements  of  a  Valid  Appropriation. 

37.  Notice  of  Appropriation — Posting  and  Recording  Notice. 

38.  Same — What  is  a  Sufficient  Notice. 

39.  Same — Appropriation  Without  Posting  of  Notice. 

40.  Filing  Map  and  Statement  of  Appropriation. 

41.  Diversion  of  Water — Water  must  be  Diverted  Within  a  Rea- 

sonable Time. 


CONTENTS.  xi 

42.  Same — Modes  of  Diverting  and  Conducting  Water. 

43.  Same— Use  of  Natural  Channel  or  Ravine  as  Part  of  Ditch. 

44.  Same — Use   of   Ditch   Constructed   by  or   Belonging  to   An- 

other. 

45.  Same — Diversion  must  be  with  Intent  to  Use  Water  for  a 

Beneficial  Purpose. 

46.  Same — Change  of  Point  or  Means  of  Diversion. 

47.  Application   of   Water    to    Beneficial    Use — Water    must    be 

Used  Within  a  Reasonable  Time. 

48.  Same — Gradual   Application   through    Successive    Seasons. 

49.  Same — Methods  of  Applying  Water. 

50.  Same — Place  of  Use. 

51.  The  Doctrine  of  Relation. 

VI.     THE  RIGHT  ACQUIRED  BY  APPROPRIATION. 

52.  The  Doctrine  of  Priority. 

53.  Priority  between  Appropriators   Using  Water  for   Different 

Purposes. 

54.  Quantity  of  Water  That  may  be   Claimed — General   Princi- 

ples. 

55.  Same — How  Far  Determined  by  Capacity  of  Ditch. 

56.  Same — Water  must  be  Used  in  a  Reasonable  Manner. 

57.  Same — Appropriation  of  Entire  Flow  of  Stream. 

58.  Same — Surplus  Water. 

59.  Same — Enlargement  or  Extension  of  Use. 

60.  Right  to  Flow  of  Tributaries. 

61.  Use  of  Water  by  Periods. 


s      CHAPTER  IV. 

RIGHT  OF  WAY  FOR  DITCHES  AND  CANALS. 

62.  Generally — Condemnation  of  Right  of  Way. 

63.  Condemnation    of    Right    of    Way — Right   of    Condemnation 

Limited. 

64.  Same — Enlargement  of  Ditch  Already  Constructed. 

65.  Same — Assessment  of  Damages. 

66.  Right  of  Way  Over  Public  Lands. 

67.  Right  of  Entry  for  Construction  and  Maintenance  of  Ditch. 


xii  CONTENTS. 

CHAPTER  V. 

LIABILITY  FOR  DAMAGES  CAUSED  BY  CONSTRUCTION  AND 
USE  OF  DITCHES. 

§  68.  General  Rules  as  to  Liability  of  Ditch  Owner  for  Damages. 

69.  Liability  of  Irrigation  Companies  Owning  Ditches. 

70.  The  Doctrine  of  Contributory  Negligence. 

71.  Bridging  Ditches  Crossing  Highways  and  Streets. 


CHAPTER  VI. 

PROPERTY   IN   WATER  RIGHTS   AND   DITCHES. 

72.  General  Doctrine  as  to  Property  in  Water  Rights. 

73.  Water  Rights  as  Appuitenances  to  Land. 

74.  Property  in  Ditches  and  Canals. 

75.  Co-Ownership  of  Ditches  and  Water  Rights. 

76.  Taxation  of  Ditches  and  Water  Rights. 


CHAPTER  VII. 

TRANSFER  OF  WATER  RIGHTS. 

77.  Generally — Water  Right  may  be  Sold  or  Otherwise  Trans- 

ferred. 

78.  Conveyance  of  Water  Right  with  Land. 

79.  Conveyance  of  Water  Right  Separate  from  Land. 

80.  Formalities   of  Conveyance. 

81.  Contracts  and  Licenses  Affecting  Water  Rights. 


CHAPTER  VIII. 

ABANDONMENT,   ADVERSE   USER  AND   ESTOPPEL. 

82.  Abandonment — Loss   of   Water    Right   by    Abandonment    or 

Nonuser. 

83.  Same — Abandonment  and  Nonuser  Distinguished. 


CONTENTS.  Xlii 

84.  Same — Abandonment  of  Ditch  without  Abandonment  of  Wa- 

ter Right. 

85.  Same — What  Constitutes  Abandonment. 

86.  Same — Transfer  of  Water  Right  as  Abandonment. 

87.  Same — Proof  of  Abandonment. 

88.  Adverse  User — Water  Right  may  be  Acquired  by  Adverse 

User. 

89.  Same — Acquisition  of  Water  Right  by  Appropriation  and  by 

Prescription  Contrasted. 

90.  Same — User   must   be   Adverse — What   Constitutes   Adverse 

User. 

91.  Same — User   must   be   Continuous. 

92.  Same — Proof  of  Adverse  User. 

93.  Same — No  Adverse  User  as  Against  the  United  States. 

94.  Estoppel — Water  Right  Lost  by  Estoppel. 


CHAPTER  IX. 

THE   ADJUDICATION   OF   PRIORITIES. 

95.  General  Jurisdiction  of  Courts  to  Adjudicate  Water  Rights. 

96.  Determination  of  Quantity  of  Water  to  be  Awarded. 

97.  The  Decree — Certainty  and  Definiteness  Required. 

98.  The  Doctrine  of  Res  Judicata. 

99.  Statutory  Adjudication — Colorado   System — Generally. 

100.  Same — Jurisdiction  of  Courts. 

101.  Same — The  Decree. 

102.  Same — Proceedings  before  Referee. 

103.  Same — Review  and  Appeal. 

104.  Same — Independent   Action. 

105.  Same — Some  Observations  on  the  Colorado  System. 

106.  Statutory  Adjudication — Wyoming  System. 

107.  Statutory    Adjudication — Washington,    Nebraska.    Montana, 

Utah  and  Oregon. 


CHAPTER  X. 

ACTIONS  FOR  INTERFERENCE  WITH  WATER  RIGHTS. 
§  108.     Generally. 


xiv  CONTENTS. 

109.  Action  for  Diversion  of  Water — Generally. 

110.  Same — Who  may  Maintain  Action. 

111.  Same — Joinder  of  Actions  and  Parties. 

112.  Same — Independent    Diversions    by    Several    Defendants. 

113.  Same — Plaintiff's  Rights  must  be  Invaded — Proof  of  Dam- 

ages. 

114.  Same — Jurisdiction  of  a  Court  of  Equity. 

115.  Same — Pleading. 

116.  Action  to  Quiet  Title. 

117.  Pollution  of  Water. 


CHAPTER  XI. 

THE  STORAGE  OF  WATER. 

118.  Generally. 

119.  Liability  of  Reservoir  Owner  for  Damages  Caused  by  Res- 

ervoir. 


CHAPTER  XII. 

PUBLIC  CONTROL  OF  IRRIGATION. 


120.  Generally. 

121.  In    Colorado. 

122.  In  Wyoming. 

123.  In  Other  States. 


CHAPTER  XIII. 

IRRIGATION  COMPANIES. 

124.  Generally. 

125.  Acquisition  of  Water  Rights — Generally. 

126.  Same — Appropriation   by   Irrigation   Companies. 

127.  Same — Condemnation  of  Water  Rights. 

128.  Acquisition   of  Right   of  Way. 


CONTENTS.  XV 

129.  By-Laws  and  Regulations. 

130.  Irrigation  Companies  Public  Carriers  of  Water. 

131.  Duty  to  Furnish  Water  to  Consumers. 

132.  Contracts  for  Water  Rights. 

133.  Rates  for  Furnishing  Water. 

134.  Transfer  of  Stock  in  Irrigation  Companies. 


CHAPTER  XIV. 

IRRIGATION   DISTRICTS. 

135.  Generally. 

136.  Organization  of  District. 

137.  Corporate  Nature  of  Irrigation  Districts. 

138.  Powers  and  Duties  of  Board  of  Directors. 

139.  Issuance  of  Bonds  and  Levy  of  Assessments. 


CHAPTER  XV. 


THE  DESERT  LAND  ACTS. 


§  140.     The  Acts  of  Congress. 
141.     The  State  Statutes. 


CHAPTER  I. 

INTRODUCTORY. 

§  1.  Definition  of  Irrigation. 

2.  Necessity  for  Irrigation. 

3.  Irrigation  as  a  Natural  or  Artificial  Want. 

4.  Use  of  Water  for  Irrigation  as  a  Public  Use. 

5.  Rise  and  Growth  of  Irrigation  Law. 

6.  Two  Systems  of  Irrigation  Law. 

7.  Scope  of  Present  Work. 

§    1.    Definition  of  Irrigation. 

The  term  "irrigation,"  in  its  primary  sense,  means  any 
act  of  watering  or  moistening,  yet,  in  common  parlance,  its 
meaning  is  ordinarily  restricted  to  the  watering  of  lands 
for  agricultural  purposes.1  In  the  sense  in  which  the  term 
is  employed  in  the  present  work,  "irrigation"  may  be  de- 
fined to  be  the  application  of  water  to  land  by  artificial 
means  for  the  raising  of  crops  and  other  products  of  the 
soil.2  This  definition,  it  will  be  noted,  contemplates  the 
watering  of  land  by  artificial  means,  and  not  by  rainfall,  or 

1  See  Cent.  Diet. 

2  Platte  Water  Co.  v.  Northern  Colo.  Irr.  Co.,  12  Colo.  525,  21  Pac. 
711;  Paxton  &  Hershey  Irr.  Canal  &  Land  Co.  v.  Farmers'  &  Mer- 
chants' Irr.  &  Land  Co.,  45  Neb.  884,  64  N.  W.  343., 


§  2  LAW    OP    IRRIGATION.  [Ch.  1 

the  natural  overflow  of  streams,  though  possibly  the  cultiva- 
tion of  land  by  means  of  water  naturally  moistening  and 
rendering  it  productive  by  natural  overflow  may  amount  to 
a  valid  appropriation  of  such  water.3  The  term  does  not, 
however,  mean  the  conveyance  or  application  of  the  water  by 
any  particular  means,  as  by  ditches,  necessarily.  The  meth- 
od by  which  irrigation  is  effected  has  nothing  to  do  with 
the  meaning  of  the  word.4 

A  water  right  is  the  legal  right  to  use  water.5 

§    2.    Necessity  for  Irrigation. 

In  Great  Britain  and  the  eastern  states,  where  the  climate 
is  moist,  the  natural  rainfall  abundant,  and  the  land  sup- 
plied with  numerous  springs  and  flowing  streams,  the  neces- 
sity for  artificial  irrigation  can  rarely  arise.  The  concern 
of  the  farmer  is  often  not  so  much  how  to  supply  his  crops 
•with  a  sufficient  quantity  of  water,  but  how  he  may  dispose 
of  the  surplus  water  already  so  abundantly  supplied  by 
nature.  But  in  that  part  of  the  United  States  known  as  the 
"arid  region,"  comprising  a  large  portion  of  the  country 
west  of  the  Missouri  river,  a  very  different  condition  of 
affairs  prevails.  In  this  region  the  soil,  though  of  great  fer- 
tility, is,  for  the  most  part,  wholly  unproductive  on  account 
of  the  lack  of  water.  Tracts  of  land  of  vast  extent,  which, 
with  a  sufficient  supply  of  water,  would  be  productive  to 
bountifulness,  lie  practically  desert,  producing  nothing  but 
'sagebrush  and  cactus,  with  here  and  there  a  ragged  fringe 
or  struggling  cluster  of  cottonwoods  along  the  infrequent 

s  See  Thomas  v.  Guiraud,  6  Colo.  530. 

*  Charnock   v.    Higuerra,    111    Cal.    473,    44    Pac.    171.     See    post, 
§§  42,  49. 
5  Smith  v.  Denniff  (Mont,  1900)  GO  Pac.  398. 

(2) 


Ch.  1]  INTRODUCTION.  §   2 

streams.  In  this  region,  agriculture  is  often  absolutely  im- 
possible without  the  aid  of  irrigation.  This  condition  of  the 
country,  and  the  imperative  necessity  for  irrigation  to  render 
it  productive,  is  a  matter  of  common  knowledge,  of  which 
the  local  courts  will  take  judicial  notice.6 

The  western  states  with  respect  to  their  climatic  condition 
as  to  moisture  may  be  divided  into  the  "arid  region,"  strict- 
ly so-called, — that  is,  the  region  in  which  irrigation  is  abso- 
lutely essential  to  the  successful  cultivation  of  the  soil, — 
and  the  "subhumid  region,"  in  which  the  rainfall  is  in  some 
seasons  sufficient,  and  in  other  seasons  insufficient,  for  agri- 
cultural purposes.  The  arid  region  embraces,  either  wholly 
or  in  part,  the  following  states  and  territories,  namely: 
Arizona,  California,  Colorado,  Idaho,  Montana,  Nevada, 
New  Mexico,  Oregon,  Utah,  Washington  and  Wyoming.  Of 
course,  some  of  these  are  much  more  completely  arid  than 
others ;  some,  as  Arizona  and  New  Mexico,  being  very  large- 
ly so,  while  others,  as  the  states  on  the  Pacific  coast,  are, 
as  to  a  great  part  of  their  area,  especially  on  the  western 
slopes  of  the  mountains,  naturally  well  watered.  No  state 
is  wholly  arid.  The  subhumid  region  embraces  parts  of 
Kansas,  Nebraska,  North  and  South  Dakota  and  Texas.7 

The  distinction  here  made  between  the  "arid"  and  "sub- 
humid"  regions,  so  far  as  the  employment  of  these  specific 
terms  is  concerned,  will  not  be  observed  in  the  course  of 
this  work,  but  the  term  "arid  region"  will  be  used  to  denote 

I 
"Tolle  v.  Correth,  31  Tex.  362,  98  Am.  Dec.  540;  Mud  Creek  Irr., 

Agr.  &  Mfg.  Co.  v.  Vivian,  74  Tex.  170,  11  S.  W.  1078;  Prescott  Irr. 

Co.  v.  Flathers,  20  Wash.  454,  55  Pac.  635. 

i  See  Census  Report  of  Agriculture  by  Irrigation,  1890,  pp.  vii., 

257. 

(3) 


§   3  LAW    OF    IRRIGATION.  Ch.  1 

generally   all   the   states   above  enumerated   as   constituting 
both  regions. 

§    3.    Irrigation  as  a  Natural  or  Artificial  Want. 

The  water  of  a  stream  may  be  useful  to  a  riparian  pro- 
prietor to  quench  the  thirst  of  man  or  beast,  and  for  house- 
hold and  domestic  purposes.  Again,  it  may  be  useful  for 
purposes  of  agriculture,  mining,  manufacturing  or  other 
industrial  pursuits.  These  various  wants  have  been  some- 
times divided  into  two  general  classes, — natural,  or,  as  they 
are  sometimes  designated,  ordinary,  wants,  and  artificial, 
or  extraordinary,  wants;  the  natural  or  ordinary  wants  be- 
ing primary  wants,  absolutely  necessary  to  be  supplied,  such 
as  those  first  above  enumerated,  and  the  artificial  or  ex- 
traordinary wants  being  secondary,  and  such  as  are  simply 
for  the  comfort,  convenience  or  prosperity  of  the  proprietor, 
these  latter  being  held  to  be  subordinate  to  the  former.8  The 
use  is,  of  course,  natural  or  artificial,  according  as  it  is  to 
supply  a  natural  or  an  artificial  want.  To  the  latter  class, 
the  use  of  water  for  industrial  purposes  has  been  usually 
assigned. 

It  is  generally  conceded  that  a  riparian  proprietor  may 
use  the  water  of  a  stream  for  any  of  the  purposes  named, 
provided  his  use  of  the  water  for  such  purpose  be  reason- 
able. The  difficulty  has  been  to  determine  what  is  a  reason- 
able use  in  each  case.  It  seems  that  it  was  in  the  attempt  to 
establish  a  practical  rule  by  which  to  determine  this  question 
for  each  particular  case  that  the  above  classification  was 

s  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176,  Fed.  Cas.  No.  14,- 

371. 

(4V 


Ch.  1]  INTRODUCTION.  §    3 

adopted.  It  was  considered  that  the  necessary  use  of  water 
to  supply  natural  or  ordinary  wants,  without  regard  to  the 
effect  of  such  use  upon  lower  proprietors  in  case  of  deficiency, 
was  reasonable ;  while  with  reference  to  the  artificial  or 
extraordinary  uses,  the  effect  of  the  use  on  those  below  must 
always  be  considered  in  determining  its  reasonableness.9 
Obviously,  if  this  distinction  be  accepted  as  law,  it  is  of 
prime  importance  to  determine  to  which  class  any  particular 
use  of  water  belongs,  as  this  will  have  a  most  important  bear- 
ing on  the  question  of  how  much  water  may  be  consumed  in 
such  use. 

There  are  but  few  cases  in  which  the  question  as  to  wheth- 
er the  use  of  water  for  irrigation  is  a  natural  or  artificial 
use  has  been  directly  raised.  Before  proceeding  to  the  ex- 
amination of  these  cases  it  should  be  noted  at  the  outset  that 
the  above  classification  was  first  made  in  early  cases  in  juris- 
dictions  where,  and  at  a  time  when,  the  subject  of  irrigation 
was  of  little  importance,  and  had  therefore  been  rarely  con- 
sidered by  the  courts.  The  opinions  of  the  judges  in  these 
cases  seem  to  have  been,  for  the  most  part,  simply  adopted 
without  question  in  later  cases  as  a  correct  statement  of  the 
law,  and  the  matter  has  received  very  little  attention  as  an 
original  proposition  to  be  examined  in  the  light  of  the 
changed  conditions  under  which  the  later  cases  were  to  be  de- 
cided. It  may  be  helpful,  also,  to  consider  the  logical  con- 
sequences that  must  follow  if  irrigation  be  considered  a  nat- 
ural or  ordinary  want,  as  above  defined,  so  as  to  determine 
from  these  the  real  attitude  of  the  courts,  as  shown  by  their 

9  See  Miner  v.  Gilmour,  12  Moore,  P.  C.  131;  Lux  v.  Haggin,  69 
Cal.  255,  10  Pac.  674;  Evans  v.  Merriweather.  3  Scam.  (111.)  496,  38 
Am.  Dec.  106. 

(5) 


§   3  LAW    OP    IRRIGATION.  [Ch    1 

actual  decisions,  rather  than  by  the  statements,  sometimes 
made  without  reflection,  to  be  found  in  the  opinions  of  the 
judges. 

As  stated  above,  the  rule  established  by  judicial  opinion 
is  that  a  riparian  proprietor  may  supply  his  natural  or  ordi- 
nary wants  from  a  stream,  without  regard  to  the  needs  of 
lower  proprietors, — that  is,  of  course,  to  say,  he  may  even 
consume  the  entire  flow  of  the  stream,  provided  this  may 
be  necessary  to  supply  his  own  wants.  In  using  the  water 
for  supplying  his  artificial  or  extraordinary  wants,  however, 
he  must  consider  the  effect  of  such  use  on  lower  proprietors, 
and,  of  course,  cannot  consume  all  the  water,  for  this  would 
wholly  deprive  them  of  the  use  of  the  stream.  A  decision 
that  a  riparian  proprietor  may  use  all  the  water  for  irriga- 
tion is,  in  effect,  a  decision  that  the  use  of  water  for  irriga- 
tion is  a  natural  or  ordinary  use.  A  contrary  decision  is, 
in  like  manner,  a  decision  that  such  use  is  artificial  or  ex- 
traordinary. 

We  will  now  examine  the  cases  bearing  on  this  question : 
In  England  and  in  the  eastern  states,  as  might  naturally  be 
expected  from  the  climatic  conditions  there  obtaining,  the 
use  of  water  for  irrigation  is  regarded  as  an  artificial  or  ex- 
traordinary use.10  In  that  part  of  the  arid  region  in  which 
the  doctrine  of  riparian  rights  is  in  force,  the  authorities 
are  directly  conflicting.  In  Texas  it  is  declared  that  the  use 
of  water  for  irrigation  in  the  arid  portions  of  the  state  is 
an  ordinary  or  natural  use,  and  that  the  entire  flow  of  a 

10  See  Miner  v.  Gilmour,  12  Moore,  P.  C.  131;  Evans  v.  Merri- 
weather,  3  Scam.  (111.)  496,  38  Am.  Dec.  106;  Garwood  v.  New  York 
Cent.  R.  Co.,  83  N.  Y.  400. 

(6) 


Ch.  1]  INTRODUCTION.  §   3 

stream  may  be  consumed  in  such  use  when  necessary.11  The 
correctness  of  this  view  was  denied  in  an  early  case  in  the 
United  States  circuit  court,  in  which  it  was  contended  that,, 
so  far  as  the  classification  of  the  use  of  water  for  irrigation 
is  concerned,  there  can  be  no  difference  in  the  law  in  moist 
and  in  dry  climates,  though  the  greater  necessity  of  irriga- 
tion in  dry  countries  may  be  a  proper  fact  to  consider  in  de- 
termining the  question  of  reasonable  use.12 

The  most  satisfactory  view  of  the  question  is  perhaps  that 
taken  by  the  supreme  court  of  California  in  a  recent  leading 
case,  in  which  the  court,  after  expressing  a  doubt  as  to 

11  Rhodes  v.  Whitehead,  27  Tex.  304;    Tolle  v.  Correth,  31  Tex. 
362,  98  Am.  Dec.  540;  Mud  Creek  Irr.,  Agr.  &  Mfg.  Co.  v.  Vivian,  74 
Tex.  170,  11  S.  W.  1078;   Barrett  v.  Metcalf,  12  Tex.  Civ.  App.  247, 
33  S.  W.  758.     The  earlier  contrary  decision  in  Fleming  v.  Davis, 
37  Tex.  173,  is  overruled  by  the  later  cases  just  cited.     See,  also, 
the  dictum  in  Evans  v.  Merriweather,  3  Scam.   (111.)   496,  38  Am. 
Dec.  106. 

The  Texas  doctrine,  established  as  to  the  arid  portion  of  the  state 
by  the  decisions  just  cited,  should  be  qualified  as  to  other  parts  of 
the  state.  Thus  in  Baker  v.  Brown,  55  Tex.  377,  the  court  says: 
"Although  it  may  be  difficult  to  always  draw  with  precision  the 
line  which  may  divide  these  two  classes  [natural  and  artificial  uses, 
of  water],  yet  it  is  abundantly  supported  by  authority  that  the  right 
to  irrigate,  when  not  indispensable,  but  used  simply  to  increase  the 
products  of  the  soil,  would  be  subordinate  to  the  right  of  a  copro- 
prietor  to  supply  his  natural  wants  and  that  [those]  of  his  family, 
tenants,  and  stock, — as  to  quench  thirst,  and  the  right  to  use  the 
water  for  necessary  domestic  purposes." 

12  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176,  Fed.  Cas.  No.  14,- 
371.     In  Oregon,  the  court  in  Low  v.  Schaffer,  24  Ore.  239,  33  Pac. 
678,  said:     "A  diversion  of  water  for  irrigation  is  not  an  ordinary 
use,  and  can  only  be  exercised  reasonably,  and  with  proper  regard 
to  the  rights  of  other  proprietors  to  apply  the  water  tp  the  same 
purposes."     Citing  Gould,  Waters,  §  205;  Pomeroy,  Riparian  Rights, 
§  125. 

CO 


§   3  LAW   OF    IRRIGATION.  [Ch.  1 

whether  any  arbitrary  classification  of  general  application 
can  be  made,  pointed  out  .the  fact  that  the  relative  impor- 
tance and  necessity  of  the  several  uses  of  the  water  of  a  par- 
ticular stream  will  generally  depend  entirely  upon  the  cir- 
cumstances of  each  case,  and  that  all  these  circumstances 
are  to  be  considered  in  determining  the  reasonableness  of 
the  use  for  irrigation.13 

In  several  later  cases  in  this  state  it  has  been  held  that  the 
right  to  the  use  of  water  for  irrigation  must  be  held  in  sub- 
ordination to  the  right  of  other  proprietors  to  use  the  water 
for  domestic  purposes,  and  for  drink  for  man  and  beast, 
these  latter  wants  being  designated  as  their  "natural" 
wants,  which  must  be  supplied  before  water  can  be  taken  for 
irrigation.14  In  view  of  the  well-settled  principles  now  es- 
tablished as  to  the  extent  of  the  right  of  a  riparian  proprie- 
tor to  use  water  for  irrigation  purposes,  any  further  at- 
tempt to  define  such  use  as  a  natural  or  artificial  one  would 
seem  superfluous.  Practically,  however,  it  may  be  regarded 
as  settled  in  the  arid  region  that  such  use  is  artificial  or  ex- 
traordinary, for  it  has  several  times  been  held  that  a  riparian 
proprietor  has  no  right  to  use  the  entire  flow  of  the  stream 
for  irrigation;  and  although  dicta  may  be  found  to  the  con- 
trary, there  is  no  actual  decision  to  that  effect,  and  it  seems 
improbable,  especially  in  view  of  the  cases  holding  the  other 
way,  that  any  such  decision  will  hereafter  be  rendered.15 

is  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674. 

i*  Alta  Land  &  Water  Co.  v.  Hancock,  85  Cal.  219,  24  Pac.  645,  20 
Am.  St.  Rep.  217;  Wiggins  v.  Muscupiabe  Land  &  Water  Co.,  113 
Cal.  182,  45  Pac.  160,  54  Am.  St.  Rep.  337 ;  Smith  v.  Corbit,  116  Cal. 
587,  48  Pac.  725. 

is  See  post,  §  17. 

(8) 


Ch.  1]  INTRODUCTION.  §   4 

In  those  states  in  which  the  doctrine  of  riparian  rights 
has  been  repudiated,  the  present  question  has  not  arisen, 
but  the  absolute  necessity  for  irrigation  has  been  universally 
recognized.  As  will  be  shown  later,  however,  in  several 
states  the  relative  preference  to  be  given  to  the  several  uses 
of  water  is  determined  by  constitutional  provisions. 

§    4.    Use  of  Water  for  Irrigation  as  a  Public  Use. 

It  may  frequently  be  necessary,  especially  in  connection 
with  the  exercise  of  the  right  of  eminent  domain  for  the  pur- 
pose of  securing  water  rights,  or  the  right  of  way  for  ditches, 
etc.,  to  determine  the  character  of  the  use  of  water  for  irriga- 
tion as  a  public  or  private  use.  The  general  rule  is,  of 
course,  well  settled,  that  private  property  cannot  be  taken, 
without  the  consent  of  the  owner,  for  a  private  use.  It  is 
to  be  noted,  however,  that  there  is  no  prohibition  in  the 
federal  constitution  which  acts  upon  the  states  in  regard  to 
their  taking  private  property  for  any  but  a  public  use.16  A 
state  may,  therefore,  by  its  constitution,  provide  for  the  tak- 
ing of  private  property  for  private  uses,  as  has  been  done  in 
several  instances,17  but,  in  the  absence  of  any  such  constitu- 
tional provision,  private  property  cannot  be  so  taken.18 

It  is  a  question  of  vital  importance.,  therefore,  to  deter- 
mine whether  the  use  of  water  for  irrigation  is  to  be  regard- 
ed as  public  or  private.  The  matter  is,  in  several  states, 
settled  by  the  state  constitutions  by  provisions  differing 
somewhat  in  breadth  of  terms.  In  Washington  it  is  declared 
generally  that  the  use  of  the  water  of  the  state  for  irrigation, 

isFallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S.  112. 

IT  See  Const.  Colo.  art.  2,  §  14;  Const.  Wyo.  art.  1,  §  32. 

isCooley.  Const.  Lira.  (6th.  Ed.)  p.  651;  Lewis,  Em.  Dom.  §  157. 

(9) 


§   4  LAW  OF  IRRIGATION.  [Ch.  1 

mining,  and  manufacturing  shall  be  deemed  a  public  use.19 
In  California,  the  use  of  all  water  appropriated  "for  sale, 
rental,  or  distribution,"  is  declared  to  be  public.20  In  Mon- 
tana, the  use  is  public  where  the  water  is  appropriated  "for 
sale,  rental,  distribution,  or  other  beneficial  use." 21  The 
Idaho  provision  is  the  same  as  that  of  California,  with  the 
addition  that  the  use  of  "all  water  originally  appropriated 
for  private  use,  but  which,  after  such  appropriation,"  has 
been  or  may  be  sold,  rented,  or  distributed,  is  public.22 

In  California  it  seems  that  the  use  of  water  by  an  indi- 
vidual primarily  for  the  irrigation  of  his  own  lands  is  a 
private  use,  although  it  is  the  intention  that  some  of  the 
water  diverted  shall  be  supplied  to  others  for  mining  and 
agricultural  purposes.23  In  Montana  this  view  is  rejected, 
and  it  is  held  that  it  is  immaterial,  so  far  as  the  public  nature 
of  the  use  is  concerned,  whether  the  land  to  be  reclaimed  by 
irrigation  is  a  small  tract,  belonging  to  one  person,  or  a  large 
body  of  land,  owned  by  many  different  persons.24  With 
reference  to  this  ruling,  it  is  submitted  that  the  position 
taken  is  at  least  questionable  as  a  matter  of  principle,  and 

is  Const,  art.  20,  §  1. 

20  Const,  art  14,  §  1. 

21  Const,  art.  3,  §  15. 

22  Const,  art.  15,  §  1. 

23  Lorenz  v.  Jacob,  63  Cal.  73.     In  this  case,  the  plaintiffs  com- 
menced proceedings  under  Code  Civ.  Proc.  §  1238,  to  condemn  lands 
belonging  to  the  defendant  for  the  construction  of  a  ditch.     It  ap- 
peared that  the  plaintiffs'  main  object  was  to  use  the  water  for 
working  their  own  mining  claims,  and  that  they  incidentally  intend- 
ed to  supply  others  with  water  for  mining  and  agricultural  pur- 
poses.    It  was  held  that  the  use  contemplated  was  private,  and  that 
the  defendant's  land  could  not  be  taken  for  such  purpose. 

24  Ellinghouse  v.  Taylor,  19  Mont.  462,  48  Pac.  757.     In  this  case,, 
the  defendant  appealed  from  a  decree  establishing  a  right  of  way 


Ch.  1]  INTRODUCTION.  §   4 

that  the  decision  of  the  California  court  is  more  in  accord 
with  the  general  rules  of  law  as  to  what  constitutes  a  public 
use. 

The  question  whether  the  use  of  water  for  irrigation  is 
a  public  use  was  considered  in  a  recent  case  in  the  United 
States  supreme  court.  The  precise  question  raised  in  this 
case  was  whether  the  California  act  providing  for  the  estab- 
lishment of  irrigation  districts  is  unconstitutional;  its  con- 
stitutionality having  been  questioned  on  the  ground  that  it 
authorized  the  taking  of  private  property  for  a  private  use. 
The  court  sustained  the  act,  and  held  the  use  of  water  for 
irrigation,  provided  for  therein,  to  be  a  public  use.  Special 

across  his  lands  in  condemnation  proceedings  instituted  by  the 
plaintiff  and  another  under  the  Montana  act  of  March  6,  1891.  In 
affirming  the  decree,  Buck,  J.,  said:  "In  California,  whose  consti- 
tutional provision  on  the  subject  of  the  use  of  water,  it  is  insisted 
by  appellant,  is  substantially  the  same  as  that  of  Montana,  a  much 
narrower  interpretation  of  the  term  'public  use'  has  been  adhered 
to  than  we  can  agree  with.  [Setting  forth  Lorenz  v.  Jacob,  63  Cal. 
73,  stated  above.]  And  yet,  in  the  state  of  California,  no  constitu- 
tional objection  is  urged  against  the  construction  of  ditches  and 
condemnation  of  rights  of  way  therefor  in  order  to  distribute  water 
to  a  number  of  owners  of  agricultural  or  mining  lands.  What  real 
distinction  is  there,  so  far  as  the  term  'public  use'  is  concerned,  be- 
tween the  benefit  that  results  to  a  state  from  the  reclamation  by  ar- 
tificial irrigation  of  160  acres  of  agricultural  land  owned  by  one  or 
two  persons,  and  the  reclamation,  by  the  same  means,  of  thousands 
of  acres  owned  by  many  different  persons  living  together  in  one 
subdivision  of  the  state?  We  do  not  think  there  is  any  in  princi- 
ple. The  reclamation  of  one  small  field  by  means  of  artificial  irri- 
gation promotes  the  development  and  adds  to  the  taxable  wealth 
of  the  state.  The  only  difference  is  the  extent  of  the  benefit.  The 
constitutional  provision  of  California,  however,  is  not  the  same  as 
that  of  Montana  on  the  subject  of  the  use  of  water.  The  former 
does  not  contain  the  phrase  'other  beneficial  use.'  But  even  if  this 
phrase  were  not  included  in  the  Montana  provision,  we  should  not 

(11) 


§   4  LAW  OF  IRRIGATION.  [Ch.  1 

stress  was  laid  in  the  opinion  upon  the  necessity  of  the  use 
irrespectively  of  the  number  of  persons  interested,  as  con- 
stituting a  controlling  factor  in  the  decision  of  the  question ; 
it  being  held  that  the  irrigation  of  really  arid  lands  is  a 
public  purpose,  and  the  water  thus  used  is  put  to  a  public 
use.25 

In  Colorado  and  Wyoming  it  would  appear  that  the  fram- 
ers  of  the  constitution  in  these  states  regarded  the  use  of 
water  for  irrigation  by  an  individual  as  a  private  use,26  and 
this  seems  clearly  in  accord  with  the  weight  of  both  reason 
and  authority.  It  is  settled  by  all  the  authorities  that  the 
use  of  water  for  irrigation,  when  distributed  by  an  irrigation 
company,  is  a  public  use.27  In  general,  whether  the  use  of 
water  for  irrigation  by  a  number  of  persons  is  to  be  regarded 

feel  disposed  to  follow  the  California  construction.  It  impresses 
us  as  narrow  and  unprogressive.  Under  this  language  in  the 
constitution  of  each  state,  namely,  'the  appropriation  of  water  for 
distribution,'  we  think  the  courts  of  either  state  would  be  justified 
in  declaring  the  use  of  water  for  one  or  two  tracts  of  land  or  mines 
a  'public  use.' " 

25  Fallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S.  112. 

26  This  seems  to  follow  by  implication  from  the  provision  that 
"private  property  shall  not  be  taken  for  private  use  unless  by  con- 
sent of  the  owner,  except  for  private  ways  of  necessity,  and  except 
for  reservoirs,  drains,  flumes,  or  ditches,  on  or  across  the  lands  of 
others  for  agricultural     *     *     *     purposes."     Const.  Colo.  art.  2,  § 
14;  Const.  Wyo.  art.  1,  §  32. 

27  Fallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S.  112;  Atlantic  Trust  Co. 
v.  Woodbridge  Canal  &  Irr.  Co.,  79  Fed.  39;  San  Diego  Flume  Co.  v. 
Souther,  90  Fed.  164;  Lindsay  Irr.  Co.  v.  Mehrtens,  97  Cal.  676,  32 
Pac.  802;  Paxton  &  Hershey  Irr.  Canal  &  Land  Co.  v.  Farmers'  & 
Merchants'  Irr.  &  Land  Co.,  45  Neb.  884,  64  N.  W.  343 ;  Umatilla  Irr. 
Co.  v.  Barnhart,  22  Ore.  389,  30  Pac.  37. 

(12) 


Ch.  1]  INTRODUCTION.  §   4 

as  a  public  use  will  depend  upon  the  facts  and  circumstances 
of  the  particular  case.28 

It  is  provided  by  statute  in  California  that  the  right  of 
eminent  domain  may  be  exercised  in  behalf  of  certain  enu- 
merated "public  uses,"  including  canals,  ditches,  etc.,  for  pub- 
lic transportation,  supplying  mines  and  "farming  neighbor- 
hoods" with  water.29  This  is  held  to  be  a  legislative  declar- 
ation that  the  supplying  of  water  to  a  farming  neighbor- 
hood is  a  public  use,  and  falls  within  the  scope  of  legislative 
duty  in  providing  for  the  public  welfare.  A  "farming  neigh- 
borhood," in  the  sense  of  this  statute,  is  defined  as  a  region 
in  which  there  are  several  tracts  of  farming  land,  with  a 
proximity  of  location,  and  which  can  be  regarded  as  a  whole 
with  reference  to  some  common  interests,  although  they  are 
distinct  in  boundaries,  and  held  in  individual  proprietorship. 
Its  extent  need  not  be  characterized  by  fixed  boundaries,  nor 
its  existence  determined  by  any  definite  number  of  proprie- 
tors ;  and  while  a  tract  of  land,  though  large  in  extent,  might, 
if  held  in  different  proprietorships,  constitute  a  neighbor- 
hood, yet  it  would  not,  if  it  were  held  in  single  ownership. 
The  supplying  of  water  to  a  tract  of  agricultural  land,  though 
of  many  thousand  acres  in  extent,  if  occupied  by  an  individ- 
ual proprietor,  would,  it  seems,  be  for  his  private  benefit,  and 
not  a  public  use;  yet  the  same  tract  of  land  might  be  so 
subdivided  and  held  in  individual  proprietorship  as  to  ren- 
der the  supplying  of  water  to  it  a  public  instead  of  a  private 
use.  It  is  not  necessary  that  the  entire  public  shall  enjoy 

28  Fallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S.  112;  Oury  v.  Goodwin 
(Ariz.,  1891)  26  Pac.  376;  Lindsay  Irr.  Co.  v.  Mehrtens.  97  Cal.  676, 
32  Pac.  802. 

20  Code  Civ.  Proc.  §  1238. 

(13) 


§  5  LAW  OF  IRRIGATION.  [Ch.  1 

the  use,  or  even  that  it  be  capable  thereof,  but  the  use  must 
be  capable  of  enjoyment  by  all  who  may  be  within  the  neigh- 
borhood, and  there  must  be  within  that  neighborhood  so  great 
a  number  of  the  entire  public  as  to  destroy  its  character  as  a 
private  use.30 

Whether  a  particular  region  is  a  farming  neighborhood, 
and  whether  the  supplying  of  water  to  that  neighborhood 
constitutes  a  public  use,  are  questions  of  fact.31 

§    5.    Else  and  Growth  of  Irrigation  Law. 

As  would  naturally  be  expected  from  the  circumstances 
considered  in  a  previous  section,  the  modern  law  of  irriga- 
tion is  almost  entirely  a  product  of  the  western  courts  and 
legislatures.  There  being  almost  no  necessity  for  irrigation 
in  Great  Britain  and  the  eastern  states,  there  has,  of  course, 
been  very  little  litigation  on  the  subject,  and  the  cases  in 
which  it  has  been  considered  are  extremely  few,  while  legis- 
lation on  the  subject  would  be  entirely  superfluous.  On  the 
other  hand,  in  the  arid  region,  where  the  farmers,  from  the 
first  settlement  of  the  country,  have  been  compelled  to  re- 
sort to  irrigation,  many  questions  as  to  their  relative  rights 
as  irrigators  have  arisen  and  been  determined  by  the  courts, 
or  have  been  made  the  subject  of  statutory  enactments.  Al- 
ready a  large  number  of  irrigation  cases  have  been  decided, 
beginning  with  the  judicial  history  of  the  several  states  and 
territories,  and  the  number  of  such  cases  is  rapidly  increas- 

«o  Lindsay  Irr.  Co.  v.  Mehrtens,  97  Cal.  676,  32  Pac.  802.  See,  also, 
Oury  v.  Goodwin  (Ariz.,  1891)-  26  Pac.  376. 

si  Lindsay  Irr.  Co.  v.  Mehrtens,  97  Cal.  676,  32  Pac.  802.  See, 
also,  Lux  v.  Haggin,  69  Cal.  255,  304,  10  Pac.  674;  Aliso  Water  Co. 
v.  Baker,  95  Cal.  268,  30  Pac.  537. 


Ch.  1]  INTRODUCTION.  §  6 

ing.    At  the  same  time,  a  great  body  of  statute  law  has  arisen 
on  the  subject. 

When  it  is  said  that  the  number  of  irrigation  cases  de- 
cided by  other  than  western  courts  has  been  small,  it  must 
not,  however,  be  understood  that  these  cases  have  played  an 
unimportant  part  in  the  development  of  irrigation  law.  On 
the  contrary,  it  will  be  found  that  one  of  the  two  great  sys- 
tems of  irrigation  law  presently  to  be  noticed  is  based  almost 
entirely  upon  the  principles  announced  in  these  cases,  and 
is  little  more  than  a  development  of  the  law  as  established 
by  them,  with  such  modifications  and  additions  as  have  been 
found  necessary  in  adapting  the  common-law  doctrine  of 
riparian  rights  to  the  peculiar  conditions  existing  in  the  arid 
states. 

§    6.    Two  Systems  of  Irrigation  Law. 

While  the  absolute  necessity  for  irrigation  has  been  rec- 
ognized in  all  the  arid  states,  two  different  views  prevail  as 
to  the  nature  and  extent  of  the  rights  of  the  irri  gator  grow- 
ing out  of  this  necessity.  The  result  is  that  two  entirely  dis- 
tinct systems  of  irrigation  law  have  grown  up  side  by  side 
in  the  arid  region,  based  upon  principles  fundamentally  dif- 
ferent, yet  overlapping  each  other  in  many  important  de- 
tails. The  older  system,  which  has  prevailed  from  an  early 
date  in  California,  and  which  may  be  called  the  "California 
-system,"  rests  upon  the  common  law  of  riparian  rights.  The 
other  system,  which  originated  in  California,  but  which  was 
first  applied  to  private  lands  in  Colorado,  and  is  therefore 
known  as  the  "Colorado  system,"  is  based  upon  an  entirely 
new  principle  in  the  law  of  water  rights,  known  as  the  doc- 
trine of  "appropriation."  One  or  the  other  of  these  two 
systems  has  been  adopted  in  all  of  the  other  arid  states. 

(15) 


§  7  LAW  OF  IRRIGATION.  [Ch.  1 

In  this  work,  the  two  systems  will  first  be  discussed  sep- 
arately, so  far  as  this  may  be  necessary  to  bring  out  the  pe- 
culiar features  of  each,  but  in  the  treatment  of  questions 
that  may  arise  in  the  case  of  either,  they  will  be  considered 
together,  such  distinctions  being  made  as  occasion  may  re- 
quire. The  points  of  resemblance  and  difference  between 
the  rights  of  the  irrigator  under  the  two  systems  will  thus  be 
brought  out  in  the  course  of  the  work.32 

§    7.    Scope  of  Present  Work. 

While  it  might  be  interesting  and  instructive,  as  a  matter 
of  general  information,  to  consider  the  subject  of  irrigation 
in  Egypt,  in  India,  and  in  other  parts  of  the  world,  in 
ancient  and  in  modern  times,  this  is  a  matter  entirely  foreign 
to  the  purpose  of  the  present  work,  which  will  be  confined 
to  the  discussion  of  irrigation  in  its  legal  aspect  as  a  branch 
of  American  law,  with  no  further  reference  to  the  historical, 
scientific  or  descriptive  phases  of  the  subject  than  may  be 
necessary  to  an  intelligent  understanding  of  it  as  a  matter 
of  legal  interest. 

32  The  rights  of  the  irrigator  at  common  law  and  under  the  Colo- 
rado constitution  are  well  contrasted  in  the  opinion  of  Elliott,  J.T. 
in  Oppenlander  v.  Left  Hand  Ditch  Co.,  18  Colo.  142,  31  Pac.  854. 


.(10) 


Ch.  2]  DOCTRINE    OF    RIPARIAN    RIGHTS.  §  8 


CHAPTER  II. 

THE  DOCTRINE  OF  RIPARIAN  RIGHTS. 

§     8.  Scope  of  Present  Chapter. 

9.  General  Statement  of  Doctrine  of  Riparian  Rights. 

10.  In  What  States  in  Force. 

11.  Right  of  Riparian  Owner  to  Use  Water  of  Stream  for  Irriga- 

tion. 

12.  Nature  of  Right. 

13.  Right  Limited  to  Riparian  Lands. 

14.  What  Lands  are  Riparian. 

15.  Measure  of  Right — Use  must  be  Reasonable. 

16.  What  is  a  Reasonable  Use. 

17.  No  Right  to  Use  Entire  Flow  of  Stream. 

18.  Relative  Rights  of  the  Several  Proprietors. 

19.  Return  of  Surplus  Water  to  Channel. 

20.  Point  of  Diversion  and  Return. 

21.  Right  to  Water  Artificially  Developed. 

8    8.    Scope  of  Present  Chapter. 

As  pointed  out  in  a  preceding  section,  there  are  two  dif- 
ferent systems  of  irrigation  law,  based  respectively  upon  the 
common-law  doctrine  of  riparian  rights,  and  what  is  known 
as  the  doctrine  of  "appropriation."  It  is  proposed  in  the 
present  chapter  to  discuss  the  former  system  in  so  far  as  it 
is  an  essentially  distinct  system  from  the  other.  In  pre- 
senting the  doctrine  of  riparian  rights,  no  general  discussion 
of  the  subject,  other  than  may  be  necessary  to  a  complete  un- 
derstanding of  the  doctrine  as  applied  in  the  law  of  irriga- 
tion, will  be  attempted.  This  branch  of  irrigation  law  was, 
in  the  first  instance,  derived  mainly  from  cases  involving 
other  phases  of  the  law  of  riparian  rights,  and  in  former 
times,  when  the  number  of  irrigation  cases  was  very  small, 

(17) 


§  9  LAW  OF  IRRIGATION.  [Ch.  2 

and  the  rights  of  riparian  proprietors  were  therefore  deter- 
mined mainly  in  cases  where  other  uses  of  water  were  in- 
volved, it  was  necessary  to  consider  such  cases  in  order  to  de- 
termine the  rights  of  the  riparian  proprietor  as  an  irriga- 
tor.  But  at  the  present  time,  when  such  rights  are  thoroughly 
well  settled  by  decisions  in  which  the  precise  point  was  pre- 
sented, it  will  be  neither  profitable  nor  necessary,  in  a  work 
of  this  character,  to  examine  cases  involving  other  water 
rights,  although  the  principles  established  thereby  are  ap- 
plicable also  to  the  use  of  water  for  irrigation.  In  this  dis- 
cussion, therefore,  only  irrigation  cases  will  be  included, 
except  where  the  contrary  is  plainly  indicated  by  the  con- 
text, or  otherwise. 

In  reading  this  chapter  it  should  be  borne  in  mind  that 
il  deals  exclusively  with  the  law  of  irrigation  according  to 
die  doctrine  of  riparian  rights,  and  the  statements  made,  al- 
though they  may  be  sometimes  general  in  form,  should  not 
be  understood  as  applying  beyond  the  scope  of  the  present 
chapter. 

§    9.    General  Statement  of  Doctrine  of  Riparian  Rights. 

The  right  of  a  riparian  proprietor  to  use  the  water  of  a 
stream  for  irrigation  is  but  one  of  his  rights  in  respect  to 
the  water  of  the  stream,  and  the  law  governing  the  exercise 
of  this  right  is  but  one  branch  of  the  general  law  as  to  the 
right  of  such  proprietor  to  the  flow  and  use  of  the  water.  A 
brief  statement  of  this  general  law  may  therefore  be  helpful 
to  an  intelligent  study  of  the  rights  of  a  riparian  proprietor 
as  an  irrigator. 

The  general  doctrine  as  to  the  right  of  a  riparian  proprie- 
tor to  the  flow  and  use  of  the  water  of  a  stream  flowing 
through  or  bordering  on  his  land  may  be  stated  as  follows: 
(18) 


Ch.  2]  DOCTRINE    OF    RIPARIAN    RIGHTS.  §  9 

Every  proprietor  of  land  on  the  banks  of  a  natural  stream 
has  an  equal  right  to  have  the  water  of  the  stream  continue 
to  flow  in  its  natural  course  as  it  was  wont  to  run,  without 
diminution  in  quantity  or  deterioration  in  quality,  except 
so  far  as  either  of  these  conditions  may  result  from  the  rea- 
sonable use  of  the  water  for  irrigation  or  other  lawful  pur- 
poses by  upper  proprietors.  He  may  himself  use  the  water 
for  necessary  purposes  in  a  reasonable  manner,  having  due 
regard  to  the  rights  and  needs  of  other  proprietors,  provided 
he  returns  to  its  natural  channel,  before  it  leaves  his  estate, 
all  the  water  not  necessarily  consumed  in  his  own  lawful  use.1 
The  right  of  the  riparian  owner  is  limited  to  a  simple  usu- 

i  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176,  Fed.  Gas.  No.  14,- 
371;  Union  Mill  &  Min.  Co.  v.  Dangberg,  2  Sawy.  450,  Fed.  Gas.  14,- 
370;  Ferrea  v.  Knipe,  28  Cal.  340;  Lux  v.  Haggin,  69  Gal.  255,  10  Pac. 
674;  Stanford  v.  Felt,  71  Cal.  249,  16  Pac.  900;  Hargrave  v.  Cook, 
108  Cal.  72,  41  Pac.  18;  Gould  v.  Eaton,  117  Cal.  539,  49  Pac.  577; 
Elliott  v.  Fitchburg  R.  Co.,  10  Gush.  (Mass.)  191,  57  Am.  Dec.  85; 
Vansickle  v.  Haines,  7  Nev.  249;  Hayden  v.  Long,  8  Ore.  244;  Coff- 
man  v.  Robbins,  8  Ore.  278;  Rhodes  v.  Whitehead,  27  Tex.  304. 

The  following  passage  from  Chancellor  Kent  (3  Kent,  Comni. 
439)  has  met  with  universal  approval  as  a  correct  statement  of  the 
law: 

"Every  proprietor  of  lands  on  the  banks  of  a  river  has  naturally 
an  equal  right  to  the  use  of  the  water  which  flows  in  the  stream  ad- 
jacent to  his  lands,  as  it  was  wont  to  run  ('currere  solebat'),  with- 
out diminution  or  alteration.  No  proprietor  has  a  right  to  use  the 
water,  to  the  prejudice  of  other  proprietors,  above  or  below  him,  un- 
less he  has  a  prior  right  to  divert  it,  or  a  title  to  some  exclusive 
enjoyment.  He  has  no  property  in  the  water  itself,  but  a  simple 
usufruct  while  it  passes  along.  'Aqua  currit  et  debet  currere  ut 
currere  solebat'  is  the  language  of  the  law.  Though  he  may  use  the 
water  while  it  runs  over  his  land  as  an  incident  to  the  land,  he 
cannot  unreasonably  detain  it,  or  give  it  another  direction,  and  he 
must  return  it  to  its  ordinary  channel  when  it  leaves  his  estate. 
Without  the  consent  of  the  adjoining  proprietors,  he  cannot  divert 

(19) 


§   9  LAW  OF  IRRIGATION.  [Ch.  2 

fruct  in  the  water  as  it  passes  along,  and  does  not  include  a 
proprietorship  in  the  water  itself.2 

It  may  be  worthy  of  remark  that  the  above  statement  of 
the  law  of  riparian  rights,  although  believed  to  correctly  em- 
body the  common-law  doctrine,  rests  mainly  on  the  authority 
of  cases  decided  in  the  arid  region.  In  this  region,  it  will  be 

or  diminish  the  quantity  of  water  which  would  otherwise  de- 
scend to  the  proprietors  below,  nor -throw  the  water  back  upon  the 
proprietors  above,  without  a  grant,  or  an  uninterrupted  enjoyment 
of  twenty  years,  which  is  evidence  of  it.  This  is  the  clear  and  set- 
tled doctrine  on  the  subject,  and  all  the  difficulty  that  arises 
consists  in  the  application.  The  owner  must  so  use  and  apply  the 
water  as  to  work  no  material  injury  or  annoyance  to  his  neighbor 
below  him,  who  has  an  equal  right  to  the  subsequent  use  of  the 
same  water;  nor  can  he,  by  dams  or  any  obstruction,  cause  the  wa- 
ter injuriously  to  overflow  the  grounds  and  springs  of  his  neighbor 
above  him.  Streams  of  water  are  intended  for  the  use  and  com- 
fort of  man;  and  it  would  be  unreasonable,  and  contrary  to  the  uni- 
versal sense  of  mankind,  to  debar  every  riparian  proprietor  from 
the  application  of  the  water  to  domestic,  agricultural,  and  manu- 
facturing purposes,  provided  the  use  of  it  be  made  under  the  limi- 
tations which  have  been  mentioned;  and  there  will, no  doubt,  inevit- 
ably be,  in  the  exercise  of  a  perfect  right  to  the  use  of  the  water, 
some  evaporation  and  decrease  of  it,  and  some  variations  in  the 
weight  and  velocity  of  the  current.  But  'de  minimis  non  curat  lex/ 
and  a  right  of  action  by  the  proprietor  below  would  not  necessarily 
flow  from  such  consequences,  but  would  depend  upon  the  nature 
and  extent  of  the  complaint  or  injury,  and  the  manner  of  using  the 
water.  All  that  the  law  requires  of  the  party  by  or  over  whose 
land  a  stream  passes  is  that  he  should  use  the  water  in  a  reasona- 
ble manner,  and  so  as  not  to  destroy,  or  render  useless,  or  material- 
ly diminish  or  affect  the  application  of  the  water  by  the  proprietors 
above  or  below  on  the  stream." 

2  Vernon  Irr.  Co.  v.  City  of  Los  Angeles,  106  Cal.  237,  39  Pac.  762; 
Hargrave  v.  Cook,  108  Cal.  72,  41  Pac.  18;  Gould  v.  Baton,  117  Cal. 
539,  49  Pac.  577;  Rhodes  v.  Whitehead,  27  Tex.  304;  Rigney  v.  Ta- 
coma  Light  &  Water  Co.,  9  Wash.  576,  38  Pac.  147.  See  Riverside 
Water  Co.  v;  Gage,  89  Cal.  410,  26  Pac.  889. 

(20) 


Ch.  2]  DOCTRINE    OF    RIPARIAN    RIGHTS.  §   10 

noticed,  the  general  question  has  usually  arisen  in  connection 
with  a  discussion  of  the  right  of  the  riparian  proprietor  to 
take  water  from  the  stream,  and  consume  it  for  irrigation  or 
other  uses,  while  in  the  jurisdictions  in  which  the  common 
law  arose,  the  right  of  the  proprietor  to  the  continued  flow 
of  the  water  was  generally  the  prime  consideration,  as  oc- 
casion for  the  permanent  withdrawal  and  consumption  of  the 
water  in  these  jurisdictions  would  rarely  arise. 

g    10.    In  What  States  in  Force. 

The  doctrine  of  riparian  rights,  as  presented  in  the  pre- 
ceding section,  prevails  in  Great  Britain  and  the  eastern 
states  of  the  Union,  and  in  all  the  states  and  territories  of 
the  arid  region,  with  the  exception  of  Arizona,  Colorado, 
Idaho,  New  Mexico,  Nevada,  Wyoming  and  Utah.  In  the 
excepted  states  and  territories,  the  common-law  doctrine  is 
regarded  as  unsuited  to  the  existing  local  climatic  conditions, 
and  has  been  repudiated  either  by  express  statute  or  by  the 
v  decisions  of  the  courts.3  Formerly  it  was  held  in  Nevada 
that  the  common  law  was  in  force  in  that  state,4  but  the  con- 
trary is  now  the  established  doctrine.5  It  is  to  be  noted  that 

s  Arizona:  Clough  v.  Wing  (Ariz.,  1888)  17  Pac.  453;  Oury  v. 
Goodwin  (Ariz.,  1891)  26  Pac.  376;  Austin  v.  Chandler  (Ariz.,  1895) 
42  Pac.  483.  See  Hill  v.  Lenormand  (Ariz.,  1888)  16  Pac.  266. 

Colorado:  Oppenlander  v.  Left  Hand  Ditch  Co.,  18  Colo.  142,  31 
Pac.  854. 

Idaho:     Drake  v.  Earhart,  2  Idaho,  716,  23  Pac.  541. 

New  Mexico:  Trambley  v.  Luterman,  6  N.  M.  15,  27  Pac.  312.  See 
Millheiser  v.  Long  (N.  M.,  1900)  61  Pac.  111. 

Utah:      Stowell  v.  Johnson,  7  Utah,  215,  26  Pac.  290. 

Wyoming:  Moyer  v.  Preston  (Wyo.,  1896)  44  Pac.  845;  Farm  Inv. 
Co.  v.  Carpenter  (Wyo.,  1900)  61  Pac.  258. 

*  Vansickle  v.  Haines,  7  Nev.  249. 

&  Bliss  v.  Grayson  (Nev.,  1899)  56  Pac.  231. 

(21) 


§   11  LAW  OF  IRRIGATION.  [Ch.  2 

the  states  and  territories  in  which  the  common-law  rule  has 
been  rejected  are  those  which  form  the  body  of  the  strictly 
arid  region,  and  in  which,  therefore,  the  common  law  of  wa- 
ter rights  would  naturally  be  least  applicable.  The  other 
states  of  the  arid  region  occupy  an  intermediate  position,  so 
far  as  their  natural  moisture  is  concerned,  between  these  al- 
most wholly  arid  states,  and  the  states  in  which  there  is  little 
or  no  need  for  irrigation.  In  these,  as  might  be  expected, 
the  common-law  doctrine,  with  some  modification  in  some 
cases,  has  been  adopted.6 

§    11.    Right  of  Riparian  Owner  to  Use  Water  of  Stream  for  Ir- 
rigation. 

A  riparian  proprietor  has  the  right  at  common  law  to 
make  a  reasonable  use  of  the  waters  of  a  natural  stream  for 
irrigation  purposes.  This  principle  is  well  established,  both 
in  England  and  the  Atlantic  states,  as  well  as  in  the  states  of 
the  arid  region  where  the  doctrine  of  riparian  rights  obtains.7 

e  See  cases  decided  in  these  states  cited  throughout  this  chapter. 

In  Bigelow  v.  Draper,  6  N.  D.  152,  69  N.  W.  570,  which  was  an  ac- 
tion to  condemn  certain  property  in  order  that  a  railroad  company 
might  divert  the  water  of  a  nonnavigable  stream  from  its  accus- 
tomed channel,  it  was  held  that  the  common  law  of  riparian  rights 
was  in  force  in  the  territory  of  Dakota  at  the  time  of  the  adoption 
of  the  constitution  of  North  Dakota,  and  that  the  provision  of  sec- 
tion 210  of  this  constitution,  that  "all  flowing  streams  and  natural 
watercourses  shall  forever  remain  the  property  .of  the  state  for  min- 
ing, irrigating  and  manufacturing  purposes,"  does  not  divest  the 
rights  of  riparian  owners  in  the  waters  and  bed  of  all  natural  water- 
courses in  the  state. 

i  England:  Embrey  v.  Owen,  6  Exch.  353.  See,  also,  Strutt  v. 
Bovingdon,  5  Esp.  56;  Greenslade  v.  Halliday,  6  Bing.  379;  Hall  v. 

(22) 


Ch.  2]  DOCTRINE    OF    RIPARIAN    RIGHTS.  §  11 

The  general  doctrine  as  to  the  right  of  a  riparian  owner 
to  use  the  water  of  a  stream  for  irrigation  is  the  same  in  the 
arid  states  as  in  moister  regions,  except  that  a  somewhat 
more  liberal  policy  as  to  the  permissible  extent  of  such  use 
has  been  adopted  in  view  of  the  greater  need  for  irrigation  in 
the  arid  region.8 

Swift,  6  Scott,  167;  Earl  of  Sandwich  v.  Great  Northern  R.  Co.,  10 
Ch.  Div.  707;  Miner  v.  Gilmour,  12  Moore,  P.  C.  131. 

United  States:  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176, 
Fed.  Cas.  No.  14,371;  Union  Mill  &  Min.  Co.  v.  Dangberg,  2  Sawy. 
450,  Fed.  Cas.  No.  14,370. 

Alabama:     Ulbricht  v.  Eufaula  Water  Co.,  86  Ala.  587,  6  So.  78, 

California:  Ferrea  v.  Knipe,  28  Cal.  340;  Pope  v.  Kinman,  54  Cal. 
3;  Ellis  v.  Tone,  58  Cal.  289;  Anaheim  Water  Co.  v.  Semi-Tropic  Wa- 
ter Co.,  64  Cal.  185,  30  Pac.  623;  Lux  v.  Haggin,  69  Cal.  255,  10  Pac. 
674;  Swift  v.  Goodrich,  70  Cal.  103,  11  Pac.  561;  Charnock  v.  Higuer- 
ra,  111  Cal.  473,  44  Pac.  171. 

Connecticut:     Gillett  v.  Johnson,  30  Conn.  180. 

Maine:  Blanchard  v.  Baker,  8  Greenl.'  (Me.)  253,  23  Am.  Dec. 
504.  See,  also,  Davis  v.  Getchell,  50  Me.  602,  79  Am.  Dec.  636. 

Massachusetts:  Weston  v.  Alden,  8  Mass.  136;  Anthony  v.  Lap- 
ham,  5  Pick.  (Mass.)  175;  Elliott  v.  Fitchburg  R.  Co.,  10  Gush. 
(Mass.)  191,  57  Am.  Dec.  85. 

New  Jersey:     Farrell  v.  Richards,  30  N.  J.  Eq.  511. 

New  York:  See  Garwood  v.  New  York  Cent.  &  H.  R.  R.  Co.,  83 
N.  Y.  400. 

Nevada:     Jones  v.  Adams,  19  Nev.  78,  6  Pac.  442. 

Oregon:  Hayden  v.  Long,  8  Ore.  244;  Coffman  v.  Robbins,  8  Ore. 
278. 

Pennsylvania:  Randall  v.  Silverthorn,  4  Pa.  St.  173;  Miller  v. 
Miller,  9  Pa.  St.  74;  Messinger's.  Appeal,  109  Pa.  St.  285,  4  Atl.  162. 
See,  also,  Kaufman  v.  Griesemer,  28  Pa.  St.  407. 

.Wisconsin:  See  Case  v.  Hoffman,  84  Wis.  438,  54  N.  W.  793,  75 
N.  W.  945. 

s  See  Harris  v.  Harrison,  93  Cal.  676,  29  Pac.  325.  In  Bathgate  v. 
Irvine  (Cal.,  1899)  58  Pac.  442,  it  is  said  that  "the  rule  of  the  com- 
mon law  as  to  riparian  rights,  in  its  extreme  rigor,  has  not  been 
found  to  be  adapted  to  the  conditions  existing  in  this  state.  At 

(23) 


§§   12-13  LAW  OF  IRRIGATION.  [Ch.  2 

§    12.    Nature  of  Right. 

The  right  of  a  riparian  proprietor  to  the  flow  of  the  water 
of  the  stream  is  held  to  be  inseparably  annexed  to  the  soil, 
and  passes  with  it,  not  as  an  easement  or  appurtenance,  but 
as  part  and  parcel  of  it.  It  follows  that  the  right  is  in  no 
way  dependent  upon  user.  Use  does  not  create  the  right,  and 
disuse  cannot  destroy  or  suspend  it.  If  the  riparian  proprie- 
tor does  not  care  or  need  to  use  the  water,  he  still  has  the 
right  to  have  it  flow  in  its  accustomed  channel,  except  as  its 
volume  may  have  been  decreased  by  its  reasonable  use  by  up- 
per proprietors.  His  right  can  be  lost  only  by  grant,  con- 
demnation or  prescription.9  The  statement  made  above, 
that  the  right  is  inseparable  from  the  soil,  must  not  be  taken 
altogether  without  qualification,  for,  as  just  suggested,  the 
right  to  use  the  water  of  a  stream  may  be  acquired,  as  against 
the  riparian  proprietor,  by  grant,  condemnation  or  prescrip- 
tion.10 

§    13.    Right  Limited  to  Riparian  Lands. 

The  right  of  a  riparian  owner  to  use  the  water  of  a  stream 
for  irrigation  exists  simply  by  virtue  of  his  ownership  of 

common  law,  the  riparian  owner  was  limited  in  the  use  of  the  wa- 
ter of  a  stream  to  domestic  purposes  and  watering  stock,  and  might 
utilize  it  for  power.  -We  have  added  to  these  purposes  that  of  rea- 
sonable use  for  irrigation." 

This  is  not  strictly  accurate,  for,  as  has  just  been  seen,  a  reasona- 
ble use  of  the  water  for  irrigation  was  allowed  at  common  law. 

»  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674;  Stanford  v.  Felt,  71  Gal. 
249,  16  Pac.  900;  Heilbron  v.  76  Land  &  Water  Co.,  80  Cal.  189,  22 
Pac.  62;  Vernon  Irr.  Co.  v.  City  of  Los  Angeles,  106  Cal.  237,  39  Pac. 
762;  Hargrave  v.  Cook,  108  Cal.  72,  41  Pac.  18;  Bathgate  v.  Irvine 
(Cal.,  1899)  58  Pac.  442.  p 
10  See  post,  §§  77-81,  88. 

(24) 


Ch.  2]  DOCTRINE    OF    RIPARIAN    RIGHTS.  §   14 

the  lands  adjacent  to  the  stream,  and,  ^as  has  already  been 
seen,  is  annexed  to  the  soil  of  such  lands  as  part  and  parcel 
thereof.  It  follows,  necessarily,  that  the  right  does  not  ex- 
tend to  one  who  is  not  a  riparian  owner,11  nor  can  it  be  exer- 
cised in  respect  to  lands  which  are  not  riparian.  A  riparian 
owner  has  no  right  to  divert  to  nonriparian  lands,  to  be 
there  used,  the  water  which  he  has  a  right  to  use  on  riparian 
lands,  but  which  he  does  not  so  use.12  It  is  to  be  observed 
that  the  foregoing  has  reference  to  the  right  of  a  riparian 
owner,  as  such,  to  use  the  water  of  the  stream,  as  against 
lower  riparian  proprietors.  There  would  seem  to  b6  no 
reason  why  more  extensive  rights  could  not  be  acquired,  as 
against  lower  proprietors,  by  grant  or  prescription,  or  why, 
when  the  water  supply  is  abundant,  and  no  possible  injury 
could  result  to  lower  proprietors,  a  riparian  owner  might 
not  be  permitted  to  use  the  water  on  nonriparian  lands,  as 
well  as  upon  land  bordering  on  the  stream.  It  is  certain, 
however,  that  he  cannot  do  this  where  it  would  in  any  way  in- 
terfere with  the  riparian  rights  of  lower  proprietors. 

§    14.    What  Lands  are  Riparian. 

Some  questions  have  been  raised  as  to  what  lands  are  to 
})e  considered  riparian,  within  the  sense  of  the  preceding  sec- 
tion. Literally,  of  course,  riparian  lands  are  lands  border- 
ing upon  a  stream,  but  it  is  sometimes  a  question  as  to  how 
far  back  from  the  stre.am  the  land  may  be  considered  riparian. 
There  is  very  little  judicial  authority  on  the  question.  It  is 

11  Hayden  v.  Long,  8  Ore.  244.  See,  also,  Alta  Land  &  Water  Co. 
v.  Hancock,  85  Cal.  219,  24  Pac.  645,  20  Am.  St.  Rep.  217. 

i2Chauvet  v.  Hill,  93  Cal.  407,  28  Pac.  1066;  Gould  v.  Eaton,  117 
Cal.  539,  49  Pac.  577;  Bathgate  v.  Irvine  (Cal.,  1889)  58  Pac.  442. 

(25) 


§  14  LAW  OF  IRRIGATION.  [Ch.  2 

plainly  not  possible  to  define  the  distance  to  which  the  ripa- 
rian proprietor's  right  to  use  the  water  for  irrigation  or  other 
purposes  extends,  but  this  will  depend  upon  the  circum- 
stances of  each  case.  The  only  general  rule  that  can  be  laid 
down  is  that  the  distance  and  use  should  be  reasonable.13  It 
is  settled  that  lands  lying  in  another  watershed,  although 
forming  a  portion  of  the  same  tract  with  riparian  lands,  are 
not  riparian  in  respect  to  the  same  stream.14 

The  question  whether  a  particular  tract  of  land  is  riparian 
will  depend  not  only  upon  its  situation  with  reference  to  a 
stream,  but  also  upon  the  fact  of  ownership.  To  be  a  riparian 
proprietor,  a  person  must  of  course  own  land  bordering  on 
the  stream,  and  hence  the  owner  of  a  tract  of  land  which 
does  not  itself  touch  the  stream,  although  it  may  lie  in  the 
valley  of  the  stream,  so  that  it  would  be  riparian  land  if  be- 
longing to  the  same  owner,  and  forming  a  part  of  the  same 
tract  with  land  bordering  on  the  stream,  is  not  a  riparian 
owner,  and  his  land  is  not  riparian  land.  Hence,  the  same 
piece  of  land  might  be  riparian,  or  not,  according  to  the  situs 
of  the  title.15 

This  doctrine  has  been  applied  in  California  in  a  recent 
case,  in  which  it  was  held  that,  where  the  owner  of  riparian 
land  acquires  title  to  other  land  contiguous  thereto,  but  lying 
away  from  the  stream,  the  land  so  acquired  does  not  become 
riparian.  Otherwise  it  would  follow  that  the  riparian  rights 
acquired  by  a  purchase  of  a  tract  of  land  upon  a  stream 

is  Sparks  Mfg.  Co.  v.  Town  of  Newton  (N.  J.  Ch.,  1898)  41  Atl. 
385.  This  was  a  case  involving  the  right  to  use  water  for  municipal 
purposes. 

i*  Bathgate  v.  Irvine  (Cal.,  1899)  58  Pac.  442. 

IG  See  Palmer  v.  Dodd,  64  Mich.  474,  31  N.  W.  109;  Stark  v.  Miller, 
113  Mich.  465,  71  N.  W.  876.  (Not  irrigation  cases.) 

(26) 


Ch.  2]  DOCTRINE    OF    RIPARIAN    RIGHTS.  §   14 

would  extend  to  all  lands  he  might  subsequently  acquire,  no 
matter  from  whom,  nor  under  what  titles,  nor  how  distant 
from  the  stream,  provided  he  owned  all  the  land  between 
the  stream  and  the  land  so  purchased. 

In  the  case  at  bar,  the  tracts  of  land  in  question  were 
quarter-sections  granted  each  by  a  separate  patent,  based  upon 
a  separate  entry,  and  constituted,  therefore,  distinct  tracts 
of  land,  and  the  court  held  that  mere  contiguity  cannot  ex- 
tend a  riparian  right  which  is  appurtenant  to  one  quarter- 
section,  to  another,  although  both  are  owned  by  the  same  per- 
son.16 A  fortiori,  the  riparian  rights  of  the  owner  of  land 
bordering  on  a  stream  do  not  extend  to  other  land  owned  by 
him,  not  itself  bordering  on  the  stream,  and  not  contiguous 
to  the  former  tract.17 

The  fact  that  the  land  of  a  riparian  owner  lies  above  the 
level  of  the  stream,  and  so  cannot  be  irrigated  by  the  same 
method  ordinarily  employed  on  other  land,  but  only  by  the 
use  of  pumps  or  other  appliances  for  raising  the  water,  does 
not  affect  the  right  of  the  proprietor  to  use  the  water  on  such 
land.18 

isBoemer  v.  Big  Rock  Irr.  Dist.,  117  Cal.  19,  48  Pac.  908.  See, 
also,  Lux  v.  Haggin,  69  Cal.  255,  at  pages  424,  425,  10  Pac.  674. 

IT  See  Sparks  Mfg.  Co.  v.  Town  of  Newton  (N.  J.  Ch.,  1898)  41 
Atl.  385. 

is  Charnock  v.  Higuerra,  111  Cal.  473,  44  Pac.  171. 

In  Earl  of  Norbury  v.  Kitchin,  7  Law  Times  (N.  S.)  685,  it  was  held 
that  a  riparian  proprietor  might  take  water  from  the  stream  by 
pumping  machinery,  elevate  it  to  a  reservoir,  and  thence  convey 
it  by  pipe  to  nonriparian  lands,  to  be  there  used;  the  court  holding 
that  neither  the  mode  of  diversion,  nor  the  use  to  which  the  water 
was  applied,  was  material,  the  only  question  being  whether  or 
not  the  proprietor  had  taken  more  than  his  reasonable  share  of 
the  water. 

(27) 


§§   15-16  LAW  OF  IRRIGATION.  [Ch.  2 

§    15.    Measure  of  Right— Use  must  be  Reasonable. 

Having  examined  the  right  of  a  riparian  proprietor  to  use 
the  water  of  a  stream  for  irrigation  as  to  its  existence  and 
nature,  our  next  inquiry  will  be  as  to  the  extent  of  that  right, 
— that  is,  how  much  water  may  an  individual  proprietor  use, 
and  what  are  his  duties  as  to  such  use  in  respect  to  other 
proprietors.  In  the  first  place,  it  may  be  said  that  the  only 
general  rule  that  can  be  laid  down  in  this  connection  of 
universal  application  is  that  the  use  of  water  for  irrigation 
by  a  riparian  proprietor  must  in  all  cases  be  reasonable, 
due  regard  being  had  to  the  rights  and  needs  of  all  the  other 
proprietors  on  the  stream.  Upon  this  rule  all  the  authorities 
are  agreed.19 

§    16.    What  is  a  Reasonable  Use. 

In  the  nature  of  things,  no  precise  rule  can  be  laid  down 
as  to  what  constitutes  a  reasonable  use.  The  reasonableness 
of  the  use  will  in  all  cases  be  a  question  of  fact,  depending 
upon  the  circumstances  of  each  particular  case.  In  determin- 
ing the  question  of  reasonableness,  reference  must  be  had  to 
a  variety  of  considerations,,  such  as  the  size  of  the  stream, 
the  extent  of  area  to  be  irrigated,  the  character  of  the  soil, 
the  nature  of  the  crops  to  be  raised,  the  number  and  needs 
of  other  proprietors  entitled  to  use  the  water,  and  the  like.20 

Of  these  considerations,  it  is  especially  important  to  ob- 

19  See  cases  cited  ante,  §  11,  and  post,  §  16. 

soEmbrey  v.  Owen,  6  Exch.  353;  Union  Mill  &  Min.  Co.  v.  Ferris, 
2  Sawy.  176,  Fed.  Gas.  No.  14,371;  Lux  v.  Haggin,  69  Cal.  255,  10 
Pac.  674;  Gould  v.  Stafford,  77  Cal.  66,  18  Pac.  879;  Heilbron  v. 
76  Land  &  Water  Co.,  80  Cal.  189,  22  Pac.  62;  Elliot  v.  Fitchburg 
R.  Co.,  10  Cush.  (Mass.)  191,  57  Am.  Dec.  85;  Miller  v.  Miller,  9 
Pa.  St.  74. 

(28) 


Ch.  2]  DOCTRINE    OF    RIPARIAN    RIGHTS.  §  16 

serve  that  the  question  as  to  what  use  of  water  for  irrigation 
by  a  riparian  proprietor  in  a  particular  case  is  reasonable  is 
to  be  determined  with  reference  not  only  to  his  individual 
needs,  but  also  to  the  rights  and  needs  of  other  proprietors. 
The  controlling  principle  is  that  every  proprietor  along  the 
stream  has  an  equal  right  to  its  use  and  benefit.  All  have 
a  usufruct,  while  none  have  any  absolute  property  in  the 
water,  and  no  one  has  a  right  to  use  it  unreasonably,  to  the 
injury  of  other  proprietors,  above  or  below.21  The  question 
has  been  frequently  raised  as  to  what  amounts  to  an  injury 
in  such  case.  As  might  be  expected,  the  tendency  of  the  de- 
cisions in  England  and  the  Atlantic  states  is  towards  a  less 
liberal  doctrine  as  to  the  quantity  of  water  that  may  be  con- 
sumed by  a  riparian  proprietor  for  irrigation  purposes  than 
that  established  in  the  Pacific  states.  In  England,  it  seems 
that  any  perceptible  diminution  of  the  water  of  the  stream 
would  give  a  right  of  action  in  favor  of  a  lower  proprietor.22 
In  the  eastern  states,  the  general  trend  of  the  decisions  is 
to  the  effect  that  any  substantial  or  essential-  diminution  of 
the  stream  is  unreasonable,  and  not  permissible,  but  even 
here,  the  main  inquiry  seems  to  be  whether  the  lower  pro- 
prietor is  materially  injured  or  not.23  It  is  obvious  that  any 

21  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176,  Fed.  Gas.  No. 
14,371. 

22  Embrey  v.  Owen,  6  Exch.  353. 

23  Decisions  in  the  Atlantic  states : 

Connecticut:  In  Gillett  v.  Johnson,  30  Conn.  180,  the  contro- 
versy arose  over  the  right  of  the  defendant  to  use  the  water  of 
a  small  stream  arising  on  her  land,  and  naturally  flowing  to  the 
land  of  the  plaintiff,  who  had  been  accustomed  to  use  it  for  water- 
ing his  cattle.  The  defendant's  rights  were  thus  denned  by  the 
court:  "The  right  of  the  defendant  to  use  the  stream  for  pur- 
poses of  irrigation  cannot  be  questioned.  But  it  was  a  limited 

(29), 


§   16  LAW  OF  IRRIGATION.  [Ch.  2 

use  whatever  of  the  water  of  a  stream  for  irrigation  must 
necessarily  involve  some  loss  by  evaporation  and  absorption, 
and,  where  the  stream  is  small,  will  ordinarily  result  in  a 
sensible  and  material  reduction  of  its  volume.  To  deny  to 
the  riparian  owner  the  right  to  sensibly  diminish  the  now  of 
water  in  the  stream  would  therefore  often  amount  to  a  denial 
of  his  right  to  use  the  water  for  irrigation  at  all ;  yet,  as 
has  been  already  seen,  the  right  to  make  a  reasonable  use  of 
the  water  for  this  purpose  is  conceded  by  all  the  authorities. 
In  the  Pacific  states,  the  courts  have  been  controlled  by  the 
same  general  principles  of  law  as  have  been  announced  and 
observed  by  the  courts  of  England  and  the  Atlantic  states, 
but,  in  view  of  the  local  climatic  conditions,  a  somewhat  more 
liberal  view  has  been  adopted  as  to  the  amount  of  water  that 

right,  and  one  which  could  only  be  exercised  with  a  reasonable 
regard  to  the  right  of  the  plaintiff  to  the  use  of  the  water.  She 
was  bound  to  apply  it  in  such  a  reasonable  manner  and  quantity 
as  not  to  deprive  the  plaintiff  of  a  sufficient  supply  for  his  cattle." 

Maine:  In  Blanchard  v.  Baker,  8  Greenl.  (Me.)  253,  23  Am.  Dec. 
504,  the  court  said:  "[A  riparian  proprietor]  may  make  a  reason- 
able use  of  the  water  itself  for  domestic  purposes,  for  watering 
cattle,  or  even  for  irrigation;  provided  it  is  not  unreasonably  de- 
tained, or  essentially  diminished." 

Massachusetts:  Every  man  through  whose  land  the  water 
passes  may  use  it  for  irrigating  his  land,  but  he  must  so  use  it 
as  to  do  the  least  possible  injury  to  his  neighbor,  who  has  the 
same  right.  Anthony  v.  Lapham,  5  Pick.  (Mass.)  175.  See,  also, 
the  leading  case,  Elliot  v.  Fitchburg  R.  Co.,  10  Gush.  (Mass.)  191, 
57  Am.  Dec.  85. 

New  York:  In  this  state  it  has  been  held  that  a  riparian  pro- 
prietor has  a  right  to  use  as  much  water  as  is  necessary  for  his 
family  and  his  cattle,  but  he  has  no  right  to  use  it  on  his  land  if 
he  thereby  deprives  a  lower  proprietor  of  the  reasonable  use  of 
the  water  in  its  natural  channel.  Arnold  v.  Foot,  12  Wend.  (N.  Y.) 
-330. 

(30) 


Ch.  2]  DOCTRINE    OP    RIPARIAN    RIGHTS.  §   16 

may  be  consumed  in  making  a  reasonable  use  of  it  for  irriga- 
tion. As  pointed  out  in  a  recent  leading  case,  the  question 
whether  the  use  is  reasonable  is  not  so  much  whether  the 
water  below  is  diminished  thereby,  as  whether  the  lower  pro-' 
prietor  is  materially  injured  by  the  diminution.24  It  is  set- 
tled in  the  Pacific  states  that  the  use  of  water  for  irrigation 
may  be  reasonable,  although  the  quantity  of  water  flowing  to 
a  lower  proprietor  may  be  appreciably  and  substantially  di- 
minished thereby.25  But  neither  in  the  Pacific  states,  nor  in 
other  jurisdictions,  is  a  riparian  proprietor  or  other  person 
permitted  to  use  the  water  of  a  stream  for  irrigation  to  the 
material  injury  of  lower  proprietors.26  The  mere  fact  that 
the  land  of  the  lower  proprietor  is  rendered  less  productive 
does  not  make  the  use  unreasonable.27  But  each  riparian 
proprietor  must  so  use  the  water  for  irrigation  as  to  do  the 
least  possible  injury  to  lower  proprietors,28  and,  where  the 
right  of  lower  proprietors  to  use  the  water,  either  for  irriga- 
tion or  other  purposes,  is  seriously  interfered  with,  the  use  is 
unreasonable.  Thus,  one  proprietor  will  not  be  permitted, 
as  against  a  lower  mill  owner,  to  divert  or  dam  up  the  water 
for  irrigation,  so  as  to  prevent  the  running  of  the  mill.29 

That  use  is  considered  unreasonable  which  works  actual, 
material,  and  substantial  damage  to  the  common  right, — not 
to  an  exclusive  right  to  all  the  water, in  its  natural  state,  but 
to  the  right  which  each  proprietor  has,  as  limited  and  quali- 

24  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674. 

25  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674. 

26  See  cases  cited  throughout  this  section. 
27Weston  v.  Alden,  8  Mass.  136. 

28  Anthony  v.  Lapham,  5  Pick.   (Mass.)   175. 

29  Colburn  v.  Richards,   13   Mass.  420,  7  Am.  Dec.  160;     Cook  v. 
Hull,  3  Pick.   (Mass.)  269,  15  Am.  Dec.  208. 

(31) 


§  17  LAW  OF  IRRIGATION.  [Ch.  2 

fied  by  the  precisely  equal  right  of  every  other  proprietor.30 

§    17.    No  Right  to  Use  Entire  Flow  of  Stream. 

It  is  sometimes  stated  that  an  upper  proprietor  may  ex- 
haust the  stream  for  the  supply  of  his  natural  wants,  as  for 
domestic  purposes,  and  for  drink  for  himself  and  family,  and 
for  watering  his  cattle ;  his  right  in  such  case  being  measured 
by  his  own  absolute  necessity,  regardless  of  the  effect  of  the 
exercise  of  such  right  upon  lower  proprietors.  It  is  believed 
that  there  is  no  decided  case  in  which  the  precise  question 
has  been  necessarily  involved,  and,  if  such  is  the  law,  it  rests 
upon  the  opinions  of  text-book  writers  and  judicial  dicta, 
and,  if  sustained,  it  must  be  upon  the  ground  that  the  total 
consumption  of  the  water  is  a  reasonable  use,  under  the  cir- 
cumstances. As  has  been  suggested  in  a  leading  case,  it  may 
admit  of  question  whether  an  upper  proprietor  on  a  small 
stream  would  be  permitted  to  consume  the  whole  of  it  in  wa- 
tering his  cattle,  so  as  to  deprive  a  lower  proprietor  of  suf- 
ficient water  to  quench  the  thirst  of  himself  and  family.31 
This  would  seem  to  be  simply  a  question  of  the  relative  im- 
portance, among  themselves,  of  these  so-called  "natural 
wants.  But,  however  it  may  be  so  far  as  these  wants  are 
concerned,  and  irrespectively  of  any  arbitrary  classification 
of  irrigation  as  a  natural  or  artificial  want,  we  have  already 
seen  that  one  riparian  proprietor  may  use  the  water  of  the 
stream  for  irrigation  purposes  only  upon  condition  that  he 
so  use  it  as  not  to  materially  interfere  with  the  correlative 

so  Union  Mill  &  Min.  Co.  v.  Dangberg,  2  Sawy.  456,  Fed.  Gas. 
No.  14,370. 

si  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176,  Fed.  Gas.  No. 
14,371. 

(32) 


Ch.  2]  DOCTRINE    OF    RIPARIAN    RIGHTS.  §  17 

rights  of  other  proprietors.  From  this  it  necessarily  fpllows 
that  one  proprietor  cannot  divert  and  consume  the  entire 
flow  of  a  stream  for  irrigation  purposes,  to  the  exclusion  of 
lower  proprietors,  whose  right  to  the  water  is  as  good  as  his 
own,32  and  the  fact  that  all  the  water  in  the  stream  may  be 
necessary  for  the  proper  irrigation  of  his  land  cannot  change 
the  rule.33  Any  other  rule  would  be  entirely  subversive  of 
the  well-established  doctrine  that  the  rights  of  all  the  riparian 
proprietors,  as  such,  are  equal,  and  that  each  is  entitled  to  a 
reasonable  use  of  the  water  for  irrigation.34 

A  riparian  proprietor  may  lose  his  right  to  complain  of  the 
total  consumption  of  the  water  of  the  stream  by  an  upper 
proprietor  by  contract  or  agreement.  Thus,  where  the  sole 
occupants  of  lands  bordering  on  a  stream  which,  after  leaving 
their  lands,  flowed  upon  the  public  domain,  appropriated  the 
entire  flow  of  the  stream,  and,  by  agreement,  apportioned  the 
water  among  themselves,  it  was  held  that  such  agreement  was 
valid,  and  that  the  riparian  rights  of  one  of  the  parties,  who 

32  Learned  v.  Tangeman,  65  Cal.  334,  4  Pac.  191;  Gould  v.  Staf- 
ford, 77  Cal.  661,  18  Pac.  879;  Lux  v.  Haggin,  69  Cal.  255,  10  Pac. 
674;  Gillett  v.  Johnson,  30  Conn.  180;  Elliot  v.  Fitchburg  R.  Co.,  10 
Gush.  (Mass.)  191,  57  Am.  Dec.  85;  Arnold  v.  Foot,  12  Wend.  (N.  Y.) 
330. 

83  Learned  v.  Tangeman,  65  Cal.  334,  4  Pac.  191. 

34  in  Elliot  v.  Fitchburg  R.  Co.,  10  Cush.  (Mass.)  191,  57  Am.  Dec. 
85,  Shaw,  C.  J.,  satd:  "This  rule,  that  no  riparian  proprietor  can 
wholly  obstruct  or  divert  a  watercourse,  by  which  it  would  cease 
to  be  a  running  stream,  or  use  it  unreasonably  in  its  passage,  and 
thereby  deprive  a  lower  proprietor  of  a  quantity  of  his  property, 
deemed  in  law  incidental  and  beneficial,  necessarily  flows  from 
the  principle  that  the  right  to  the  reasonable  and  beneficial  use 
of  a  running  stream  is  common  to  all  the  riparian  proprietors,  and 
so  each  is  bound  so  to  use  his  common  right  as  not  essentially  to 
prevent  or  interfere  with  an  equally  beneficial  enjoyment  of  the 
common  right  by  all  tho  proprietors." 

(33) 


§   18  LAW  OF  IRRIGATION.  [Oh.  2 

afterwards   acquired   land   further   down   the   stream,   were 
subordinated  to  those  granted  by  the  contract.35 

§    18.    Relative  Rights  of  the  Several  Proprietors. 

It  is  a  fundamental  principle  of  the  doctrine  of  riparian 
rights  that  all  the  riparian  proprietors  along  a  stream  have 
an  equal  right  to  use  the  water  of  the  stream  for  irrigation 
and  other  purposes.  Of  course,  however,  this  does  not  mean 
that  all  the  proprietors  are  entitled  to  an  equal  quantity  of 
water,  but  only  that  one  proprietor's  right  to  use  the  water 
in  a  reasonable  manner  is  as  perfect  and  inviolate  as  that  of 
any  of  the  others.  t  The  respective  quantities  of  water  to 
which  the  several  proprietors  are  entitled  are  to  be  deter- 
mined by  reference  to  the  general  principles  upon  which  the 
right  to  use'  water  for  irrigation  at  all  is  based. 

To  summarize  these  principles,  it  may  be  said  that  each 
proprietor  is  entitled  to  use  so  much,  and  only  so  much,  of 
the  water  of  the  stream  as  may  be  reasonably  necessary  for 
the  irrigation  of  his  riparian  lands,  due  regard  being  had  to 
the  rights  of  other  proprietors,  and  all  the  circumstances  of 
the  case.  His  right  is  measured  by  his  necessity, — that  is, 
he  cannot  claim  any  more  water  than  is  or  would  be  necessary 
for  the  proper  irrigation  of  his  land.  But  his  own  necessity 
is  not  the  only  determining  factor.  His  right  must  be  exer- 
cised with  due  regard  to  the  rights  of  others.  He  cannot 
claim  all  the  water  of  the  stream,  although  all,  or  more  than 
all,  might  advantageously  be  used  on  his  own  land,  for  this 
would  be  to  exclude  other  proprietors  from  all  enjoyment  of 
the  water.  Nor  can  he  use  more  than  his  due  proportion, 

35  Alhambra  Addition  Water  Co.  v.  Mayberry,  88  Cal.  68,  25  Pac. 
1101. 
(34) 


Ch.  2]  DOCTRINE    OF    RIPARIAN    RIGHTS.  §  18 

considering  the  number  of  proprietors,  and  the  extent  and 
needs  of  their  lands,  respectively.36  On  the  other  hand,  the 
right  of  each  proprietor  is  measured,  not  by  the  quantity  of 
water  which  he  actually  appropriates  37  or  uses,  for  his  right 
is  not  in  any  way  dependent  for  its  creation  or  continuance 
upon  user,  but  exists  as  an  incident  of  the  soil,38  and  hence 
the  amount  of  irrigable  land  belonging  to  each  owner,  rather 
than  the  amount  under  cultivation,  is  the  controlling  factor 
in  adjusting  the  rights  of  the  several  owners.39 

It  is  apparent  from  the  foregoing  that  the  quantity  of 
water  to  which  one  proprietor  may  be  entitled  need  not, 
and  ordinarily  will  not,  be  the  same  as  that  which  may  be 
claimed  by  another.  The  right  to  use  the  water  for  irriga- 
tion results  from  the  need  of  water  upon  the  land.  Assum- 
ing this  need,  in  any  given  case,  to  exist  equally  as  to  all  the 
riparian  land,  the  respective  rights  of  the  proprietors  must 
clearly  be  in  proportion  to  their  respective  ownerships  upon 
the  stream.  If  every  riparian  proprietor  on  a  given  stream 
owned  the  same  quantity  of  land,  with  the  same  frontage  on 
the  stream,  and  the  same  susceptibility  to  and  need  of  irriga- 
tion, each  would  be  entitled  to  precisely  the  same  quantity  of 
water  for  that  purpose.40  These  conditions  will,  of  course, 
rarely,  and  perhaps  never,  be  all  satisfied  in  any  actual  case, 
but  the  principle  illustrated  is  the  one  that  must  control  in 
all  cases. 

SB  See  ante,  §§  9,  15-17. 

37  Van  Bibber  v.  Hilton,  84  Cal.  585,  24  Pac.  308. 

3s  See  ante,  §  12.  See,  also,  Heilbron  v.  76  Land  &  Water  Co., 
80  Cal.  189,  22  Pac.  62. 

39  Wiggins  v.  Muscupiabe  Land  &  Water  Co.,  113  Cal.  182,  45  Pac. 
160,  54  Am.  St.  Rep.  337. 

*o  See  Charnock  v.  Higuerra,  111  Cal.  473,  44  Pac.  171. 

(35) 


§  19  LAW  OF  IRRIGATION.  [Ch.  2 

It  may  sometimes  happen  that  the  water  of  a  stream,  al- 
though sufficient  to  supply  the  wants  of  some  of  the  proprie- 
tors, provided  they  may  take  all  of  the  water,  will  be  wholly 
inadequate  for  the  use  of  all  who  may  be  entitled  to  a  share 
therein,  if  all  claim  the  water  at  the  same  time.  In  such 
case,  should  each  proprietor  insist  that  every  other  proprietor 
take  from  the  stream  only  his  due  proportion  of  the  water, 
it  is  apparent  that  the  entire  flow  of  the  stream  might  be 
consumed,  and  no  proprietor  receive  any  substantial  benefit 
therefrom,  or,  because  some  proprietors  might  not  happen  to 
need  the  water  at  the  time,  water  absolutely  necessary  for  the 
use  of  other  proprietors  might  run  to  waste  in  the  stream. 
To  avoid  this  result,  it  would  obviously  be  to  the  interest  of 
all  the  proprietors  to  agree  among  themselves  that  the  water 
be  apportioned  between  them  by  periods  of  time,  rather  than 
by  a  division  of  its  quantity,  as  they  might  undoubtedly  law- 
fully do,  so  that  each  may  have  the  full  flow  of  the  stream, 
or  so  much  thereof  as  may  be  necessary,  during  such  desig- 
nated periods,  instead  of  a  portion  of  the  flow  during  all  the 
time.  In  the  absence  of  any  such  agreement,  a  court  of 
equity  has  power  to  so  apportion  the  water  when  the  cir- 
cumstances are  such  that  a  division  in  this  manner  will  best 
conserve  the  rights  of  all  the  riparian  proprietors.41 

§    19.    Return  of  Surplus  Water  to  Channel. 

After  a  riparian  proprietor  has  made  such  reasonable  use 
of  the  water  for  irrigation  as  he  is  entitled  to  make,  he  is 
required  to  return  the  surplus  water  into  its  natural  channel 
before  it  leaves  his  land,  and  flows  upon  that  of  the  lower 

41  Harris  v.  Harrison,  93  Cal.  676,  29  Pac.  325;    Wiggins  v.  Mus- 
cupiabe  Land  &  Water  Co.,  113  Cal.  182,  45  Pac.  160,  54  Am.  St. 
Rep.  337. 
(36) 


Ch.  2]  DOCTRINE    OF    RIPARIAN    RIGHTS.  §12 

proprietor,  so  as  to  leave  the  latter  in  the  enjoyment  of  his 
right  to  the  unaltered  flow  of  the  stream,  except  so  far  as  it 
may  have  been  diminished  by  the  reasonable  use  of  the  upper 
proprietor.42  If  the  surplus  is  not  so  returned,  its  diversion 
will  be  restrained  at  the  suit  of  a  lower  riparian  proprietor.43 
The  manner  in  which  the  water  is  returned  to  the  natural 
channel  before  reaching  the  land  of  the  lower  proprietor  is 
immaterial  to  him,  so  long  as  his  rights  are  not  impaired, 
and  he  cannot  require  the  upper  proprietor  to  return  it  in 
any  particular  manner.44  Thus,  it  may  be  permitted  to 
flow  back  naturally,  or  may  be  returned  by  means  of  pipes, 
as  the  upper  proprietor  may  see  fit.45 

§    20.    Point  of  Diversion  and  Return. 

The  right  of  a  riparian  proprietor  to  divert  the  water  of  a 
stream,  and  his  duty  to  return  to  its  natural  channel  the  sur- 
plus water  diverted  by  him,  having  been  established  and  de- 
fined, it  may  be  pertinent  to  inquire  as  to  his  right  and  duty 
in  respect  to  the  point  of  such  diversion  and  return.  Clearly, 
one  proprietor  has  no  right  to  go  upon  the  land  of  another 
for  the  purpose  of  constructing  a  dam  or  ditch  thereon,  or  to 
convey  water  across  the  same,  unless  such  right  be  acquired 
by  grant  or  prescription,  or  by  the  estoppel  of  the  land  owner 
to  object.  It  follows  from  this  that,  in  the  absence  of  such 

42  Union  Mill  &  Min.  Co.  v.  Ferris,  2   Sawy.   176,  Fed.   Gas.  No. 
14,371;    Gould  v.  Stafford,  77   Cal.  66,   18  Pac.   879;     Blanchard  v 
Baker,  8  Greenl.  (Me.)  253,  23  Am.  Dec.  504;    Anthony  v.  Lapham 
5  Pick.   (Mass.)    175. 

43  Stanford  v.   Felt,   71   Cal.   249,   16   Pac.   900;     Barrows   v.   Fox, 
98  Cal.  63,  32  Pac.  811. 

44  Gould  v.  Eaton, 'l!7  Cal.  539,  49  Pac.  577. 

45  Wiggins  v.   Muscupiabe  Land   &  Water   Co.,   113   Cal.   182,   45 
Pac.  160,  24  Am.  St.  Rep.  337. 

(37) 

177187 


§  20  LAW  OF  IRRIGATION.  [Ch.  2 

right  so  acquired,  the  point  of  diversion  must  necessarily  be 
on  his  own  land.  As  to  the  return  of  the  surplus  water  of  the 
stream  to  its  natural  channel,  the  rule  is  generally  stated  to 
be  that  the  proprietor  using  the  water  must  return  the  sur- 
plus to  the  channel  before  it  leaves  his  land,  and  this  is  un- 
doubtedly the  law,  not  only  for  the  reason  stated  above,  but 
for  the  additional  reason  that  one  proprietor  will  not  be  per- 
mitted to  discharge  a  volume  of  water  in  a  new  and  unaccus- 
tomed channel  upon  the  land  of  a  lower  proprietor,  to  his 
injury.  Circumstances  may  exist,  however,  in  which,  in 
order  to  secure  a  sufficient  fall,  or  for  other  reasons,  it  may 
be  greatly  to  the  advantage  of  the  irrigator  to  take  the  water 
from  the  stream  at  some  point  above  his  own  land,  or  to  dis- 
charge it  at  some  point  below.  As  pointed  out  above,  the 
land  of  other  proprietors  can  be  subjected  to  such  an  ease- 
ment only  by  virtue  of  a  grant  or  a  prescriptive  right,  or  be- 
cause the  land  owner  is  estopped  to  object.  But  that  a 
riparian  proprietor  may  secure  such  easement  in  any  of  the 
ways  named  is  clear. 

It  should  be  observed,  however,  that  the  fact  that  a  land- 
owner diverts  the  water  above,  or  discharges  it  into  the 
natural  channel  below,  his  own  land,  may  have  an  important 
bearing  on  the  question  of  reasonable  use.  The  conveyance 
of  the  water  diverted  must  entail  some  loss  by  absorption 
and  evaporation,  which,  in  the  case  of  a  long  ditch,  may  be 
considerable,  and,  as~  the  riparian  proprietor  is  entitled  to 
take  from  the  stream  only  a  certain  quantity  of  the  water, 
it  seems  that,  where  water  is  los"t  by  reason  of  his  conveying 
it  across  the  land  of  others  for  his  own  convenience,  the  loss 
should  fall  on  him.46 

4«  The  questions  raised  in  the  text  were  discussed  by  Hillyer,  J 
(38) 


Oh.  2]  DOCTRINE    OF    RIPARIAN    RIGHTS.  §   21 

§    21.    Right  to  Water  Artificially  Developed. 

The  water  rights  of  a  riparian  owner,  as  such,  extend  only 
to  the  water  of  natural  streams,  naturally  flowing  therein. 
No  riparian  rights  can  be  claimed  in  the  water  flowing  in  an 
artificial  channel,47  or  in  the  water  artificially  developed  and 
turned  into  a  natural  channel.  The  right  to  the  artificial 
increment  of  a  stream  is  entirely  distinct  from  the  right  to 
the  natural  flow.  Such  increment  belongs  to  the  person  by 
whom  it  was  developed,  and  the  riparian  proprietors  along 
the  stream  have  no  right  or  interest  therein,  and  the  owner 

in  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176,  Fed.  Gas.  No. 
14,371,  as  follows: 

"It  may  also  result  from  the  principles  established  by  the  au- 
thorities that  the  riparian  owner  is  only  entitled  to  take  the  water 
from  the  stream  on  his  own  land,  returning  it  to  the  stream  before 
it  leaves  his  land.  This  point  does  not  appear  to  have  been  ex- 
pressly decided,  but  whenever  the  authorities  allude  to  it  at  all, 
they  speak  of  taking  the  water  on  the  land  of  the  riparian  pro- 
prietor, and  returning  the  surplus  before  it  leaves  the  land,  as 
though  this  was  a  well-recognized  condition  of  a  proper  use.  How- 
ever this  may  be,  it  would  not  be  permissible  to  take  the  water  at 
some  distance  above,  and  return  the  surplus  at  some  distance  be- 
low, the  land  of  the  riparian  proprietor  using  the  water,  if  thereby 
a  considerable  portion  of  it  would  be  wasted  before  reaching  the 
land,  or  after  leaving  it,  and  before  it  is  returned  to  the  stream, 
to  the  injury  of  other  riparian  proprietors  below.  At  all  events, 
this  circumstance  would  have  an  important  bearing  upon  the  ques- 
tion of  reasonable  use.  The  defendant  diverts  the  water  at  a  point 
considerably  distant  from  his  land,  and  his  ditch  does  not  return 
any  of  the  water  to  the  river,  but  either  conducts  it  on  to  Dan- 
berg's  farm,  or  leaves  it,  principally,  to  find  its  way  through 
sloughs,  or  down  the  natural  declivity,  to  the  west  fork,  more  than 
a  mile  distant, — some  little  perhaps  to  the  east  fork,  whence  it 
is  taken.  This  statement,  we  think,  shows  that  the  use  made  of  the 
water  by  the  defendant  at  the  period  in  question  was  unreason- 
able, and  amounted  almost  to  wanton  waste." 

«  Green  v.  Carotta,  72  Cal.  267,  13  Pac.  685. 

(39) 


§  21  LAW  OF  IRRIGATION.  [Ch.  2 

may  use  or  withdraw  it  from  the  channel  at  pleasure,  so  long 
as  he  does  not,  in  so  doing,  interfere  with  the  rights  of  other 
persons  in  the  natural  flow  of  the  stream.48  Thus,  where  an 
upper  proprietor,  by  providing  artificial  means  for  carrying 
to  the  land  of  a  lower  proprietor  the  water  that  would  nat- 
urally reach  such  land,  is  able  to  save  water  that  would  other- 
wise be  lost  by  absorption  and  evaporation,  he  is  entitled  to 
all  the  water  so  saved,  as  against  the  lower  proprietor.49  So, 
also,  a  contract  securing  to  one  of  the  parties  the  right  to  use 
the  water  flowing  in  a  natural  channel  does  not  give  him  the 
right  to  water  afterwards  artificially  developed  and  turned 
into  the  stream.50 

*s  Paige  v.  Rocky  Ford  Canal  &  Irr.  Co.,  83  Cal.  84,  21  Pac. 
1102,  23  Pac.  875;  Wiggins  v.  Muscupiabe  Land  &  Water  Co.,  113 
Cal.  182,  46  Pac.  169,  24  Am.  St.  Rep..  337;  Mayberry  v.  Alhambra 
Addition  Water  Co.  (Cal.,  1898)  54  Pac.  530.  See,  'also,  Platte 
Valley  Irr.  Co.  v.  Suckers  Irr.,  Mill  &  Imp.  Co.,  25  Colo.  77,  53  Pac. 
334. 

49  Wiggins  v.  Muscupiabe  Land  &  Water  Co.,  113  Cal.  182,  46 
Pap.  160,  24  Am.  St.  Rep.  337. 

so  Mayberry  v.  Alhambra  Addition  Water  Co.  (Cal.,  1898)  54  Pac. 
530. 

(40) 


Ch.  3] 


CHAPTER  III. 
THE  DOCTRINE  OF  APPROPRIATION. 

I.     THE  RIGHT  OF  APPROPRIATION. 

§  22.     Acquisition  of  Water  Rights  by  Appropriation. 

23.  Origin  of  the  Doctrine  of  Appropriation. 

24.  Constitutionality    of    Statutes    Authorizing   Appropria- 

tion. 

25.  Extent  of  Application  of  the  Doctrine  of  Appropriation 

in  the  Several  States. 

II.     APPROPRIATION  UNDER  ACTS  OF  CONGRESS. 

26.  Appropriation  of  Water  on  the  Public  Domain. 

27.  How  Existence  of  Water  Right  on  Public  Domain  is 

Determined. 

28.  Relative  Rights  of  Appropriator  of  Water  and  Grantee 

of  Land. 

29.  Same — Appropriation  Subsequent  to  Grant. 

30.  Same — When  Rights  of  Grantee  Attach. 

III.     WHAT  WATER  MAY  BE  APPROPRIATED. 

31.  General   Statement — Natural   Streams   Subject  to   Ap- 

propriation. 

32.  What  Constitutes  a  Stream  or  Watercourse. 

33.  Percolating  Waters  and  Subterranean  Streams. 

34.  Navigable  Streams. 

IV.     WHO  MAY  APPROPRIATE  WATER. 

35.  Who  may  Appropriate  Water. 
V.     How  WATER  is  APPROPRIATED. 

36.  The  Elements  of  a  Valid  Appropriation. 

37.  Notice  of  Appropriation — Posting  and   Recording   No- 

tice. 

38.  Same — What  is  a  Sufficient  Notice. 

39.  Same — Appropriation  Without  Posting  of  Notice. 

40.  Filing  Map  and  Statement  of  Appropriation. 

(41) 


§  22  LAW  OF  IRRIGATION.  [Ch.  3 

41.  Diversion  of  Water — Water  must  be  Diverted  Within  a 

Reasonable  Time. 

42.  Same — Modes  of  Diverting  and  Conducting  Water.  " 

43.  Same — Use  of  Natural  Channel  or  Ravine  as  Part  of 

Ditch. 

44.  Same — Use  of  Ditch  Constructed  by  or  Belonging  to 

Another. 

45.  Same — Diversion  must  be  with  Intent  to  Use  Water  for 

a  Beneficial  Purpose. 

46.  Same — Change  of  Point  or  Means  of  Diversion. 

47.  Application  of  Water  to  Beneficial  Use — Water  must 

be  Used  Within  a  Reasonable  Time. 

48.  Same — Gradual   Application   through    Successive    Sea- 

sons. 

49.  Same — Methods  of  Applying  Water. 

50.  Same — P^ace  of  Use. 

51.  The  Doctrine  of  Relation. 

VI.     THE  RIGHT  ACQUIRED  BY  APPROPRIATION. 

52.  The  Doctrine  of  Priority. 

53.  Priority  between  Appropriators  Using  Water  for  Differ- 

ent Purposes. 

54.  Quantity    of   Water    That   may    be    Claimed — General 

Principles. 

55.  Same — How  Far  Determined  by  Capacity  of  Ditch. 

56.  Same — Water  must  be  Used  in  a  Reasonable  Manner. 

57.  Same — Appropriation  of  Entire  Flow  of  Stream. 

58.  Same — Surplus  Water. 

59.  Same — Enlargement  or  Extension  of  Use. 

60.  Right  to  Flow  of  Tributaries. 

61.  Use  of  Water  by  Periods. 

I.     THE  /RIGHT  OP  APPROPRIATION. 
§    22.    Acquisition  of  Water  Rights  by  Appropriation. 

In  our  consideration  of  the  law  of  irrigation  under  the  doc- 
trine of  riparian  rights  in  the  preceding  chapter,  we  have 
found  that  this  doctrine,  as  adopted  and  applied  in  the  west- 
ern states,  is  substantially  the  same  as  in  Great  Britain  and 
(42) 


Ch.  3]  DOCTRINE     OF     APPROPRIATION.  §  23 

the  eastern  states,  and  no  new  principle  has  been  ingrafted 
into  it,  although  the  climatic  conditions  under  which  it  is 
applied  are  radically  different.  We  are  now  to  examine  an 
entirely  new  principle  in  the  law  of  water  rights,  namely,  the 
doctrine  of  appropriation, — perhaps  the  most  original  contri- 
bution of  our  western  civilization  to  the  science  of  jurispru- 
dence. According  to  this  doctrine,  a  right  to  the  use  of  the 
water  of  natural  streams,  not  already  appropriated  by  others, 
may  be  acquired  by  simple  appropriation,  irrespective  of  the 
ownership  of  the  lands  through  which  the  streams  may  flow, 
or  lany  other  considerations.  In  most  of  the  states  in  the  arid 
region  it  is  provided  by  constitution  or  statute,  or  both,  that 
the  unappropriated  water  of  natural  streams  shall  be  subject 
to  appropriation  for  irrigation  and  other  useful  purposes,1 
and,  as  will  presently  be  seen,  this  doctrine  existed  prior  to 
any  legislation  or  constitutional  provisions  on  the  subject.2 

§    23.    Origin  of  the  Doctrine  of  Appropriation. 

The  doctrine  of  appropriation  of  water  originated  in  Cali- 
fornia soon  after  the  first  settlement  of  that  state  upon  the 
discovery  of  gold  in  1848.  Its  first  application  was  in  con- 
nection with  mining  operations.  For  such  purposes,  water 
was  absolutely  indispensable,  but  as  such  use  often  necessari- 
ly involved  the  diversion  of  the  water  to  points  at  a  distance 
from  the  stream,  from  which  it  could  not  well  be  restored  to 
its  natural  channel,  as  well  as  its  substantial  diminution  in 
quantity  and  deterioration  in  quality,  it  was  found  that  the 
common-law  doctrine  governing  the  right  to  the  use  of  the 
water  of  natural  streams  was  inapplicable.  Moreover,  at 
that  time  this  territory  belonged  almost  entirely  to  the  public 

1  See  statutes,  etc.,  in  Appendix. 

2  See  post,  §  23.     Coffin  v.  Left  Hand  Ditch  Co.,  6  Colo.  443. 

(43) 


§  23  LAW  OF  IRRIGATION.  [Ch.  3 

domain,  and  there  were  therefore  lio  riparian  proprietors,  ex- 
cept so  far  as  the  government  might  be  said  to  possess 
riparian  rights,  by  whom  the  common-law  rights  of  riparian 
proprietors  might  be  asserted.  Hence,  the  settlers  were  free 
to  adopt  any  rules  as  to  the  right  to  use  water  for  mining 
or  other  purposes  as  might  seem  best  suited  to  the  existing 
conditions,  just  as,  in  the  absence  of  any  settled  government, 
owing  to  the  rapidity  with  which  the  country  was  filled  up 
with  people  from  all  parts  of  the  world,  all  government  was 
largely  a  matter  of  local  regulation.  Thus,  the  mining  in- 
dustry was  at  an  early  date  regulated  according  to  certain 
customs  and  rules  adopted  by  the  miners  of  the  various  min- 
ing districts.  The  essential  principle  of  these  rules  and  reg- 
ulations was  that  the  right  to  a  mining  claim  could  be  ac- 
quired only  by  prior  discovery  and  appropriation,  and  re- 
tained by  actual  work  and  development.  The  application  of 
this  principle  was  necessarily  extended  to  the  acquisition  of 
the  right  to  the  use  of  water,  without  which,  mining  opera- 
tions could  not  be  successfully  conducted.  These  mining 
rules  and  customs  were  soon  recognized  and  sanctioned  by 
the  state  courts,  and  were  acquiesced  in  by  the  federal  gov- 
ernment, and  finally  confirmed  by  act  of  congress. 

The  doctrine  of  priority  thus  first  established  by  the  cus- 
tom of  miners  with  reference  to  the  use  of  water  in  mining 
has  been  extended  and  applies  with  equal  force  to  its  use  for 
irrigation  and  other  beneficial  purposes.3 

3  As  to  the  origin  and  development  of  the  doctrine  of  the  appro- 
priation of  water,  see,  generally,  Jennison  v.  Kirk,  98  U.  S.  453; 
U.  S.  v.  Rio  Grande  Dam  &  Irr.  Co.,  174  U.  S.  690,  19  Sup.  Ct.  770; 
Hill  v.  Lenormand  (Ariz.,  1888)  16  Pac.  266;  Drake  v.  Earhart, 
2  Idaho,  716,  23  Pac.  541. 

In  Atchison  v.  Peterson,  20  Wall.  (U.  S.)  507,  Field,  J.,  said: 
"By  the  custom  which  has  obtained  among  miners  in  the  Pacific 
(44) 


Ch.  3]  DOCTRINE     OF     APPROPRIATION.  §  24 

§    24.    Constitutionality  of  Statutes  Authorizing  Appropriation. 

The  constitutionality  of  statutes  authorizing  the  acquisi- 
tion of  a  water  right  by  appropriation  is  a  question  that 
has  received  but  little  attention  from  the  courts,  their  con- 
stitutionality being  generally  tacitly  conceded.  The  precise 
point  upon  which  the  constitutionality  of  such  statutes  would 
most  naturally  be  assailed  is  that,  in  abrogating  the  common- 
states  and  territories,  where  mining  for  the  precious  metals  is 
had  on  the  public  lands  of  the  United  States,  the  first  appropriator 
of  mines,  whether  in  placers,  veins,  or  lodes,  or  of  waters  in  the 
streams  on  such  lands  for  mining  purposes,  is  held  to  have  a  better 
right  than  others  to  work  the  mine,  or  use  the  waters.  The  first 
appropriator  who  subjects  the  property  to  use,  or  takes  the  neces- 
sary steps  for  that  purpose,  is  regarded,  except  as  against  the 
government,  as  the  source  of  title  in  all  controversies  relating 
to  the  property.  As  respects  the  use  of  water  for  mining  purposes, 
the  doctrines  of  th'e  common  law  declaratory  of  the  rights  of  ripa- 
rian owners  were,  at  an  early  day,  after  the  discovery  of  gold,  found 
to  be  inapplicable,  or  applicable  only  to  a  very  limited  extent,  to 
the  necessities  of  miners,  and  inadequate  to  their  protection.  By 
the  common  law,  the  riparian  owner  on  a  stream  not  navigable 
takes  the  land  to  the  center  of  the  stream,  and  such  owner  has 
the  right  to  the  use  of  the  water  flowing  over  the  land  as  an  inci- 
dent to  his  estate.  And  as  all  such  owners  on  the  same  stream 
have  an  equality  of  right  to  the  use  of  the  water,  as  it  naturally 
flows,  in  quality,  and  without  diminution  in  quantity,  except  so 
far  as  such  diminution  may  be  created  by  a  reasonable  use  of  the 
water  for  domestic,  agricultural,  or  manufacturing  purposes,  there 
could  not  be,  according  to  that  law,  any  such  diversion  or  use  of 
the  water  by  one  owner  as  would  work  material  detriment  to  any 
other  owner  below  him.  *  *  *  This  equality  of  right  among  all 
the  proprietors  on  the  same  stream  would  have  been  incompatible 
with  any  extended  diversion  of  the  water  by  one  proprietor,  and 
its  conveyance  for  mining  purposes  to  points  from  which  it  could 
not  be  restored  to  the  stream.  But  the  government  being  the 
sole  proprietor  of  all  the  public  lands,  whether  bordering  on 

(45) 


§  24  LAW  OF  IRRIGATION.  [Cb.  3 

law  doctrine  of  riparian  rights,  they  may  authorize  the  tak- 
ing or  damaging  of  private  property  for  a  private  use  with- 
out compensation.  The  right  of  a  riparian  proprietor  to 
the  flow  of  the  water  of  a  stream  is  clearly  property,  which, 
when  vested,  can  be  destroyed  or  impaired  only  in  the  interest 
of  the  general  public,  upon  full  compensation,  and  in  accord- 
ance with  established  law.4  A  state  legislature  has  no  power, 
by  a  general  law  authorizing  the  appropriation  of  water  by 
private  persons,  to  deprive  a  riparian  proprietor  of  his  vested 
rights.5  And  it  has  recently  been  held  in  Nebraska  that  the 
act  of  that  state  of  1889,  as  amended  in  1893,  providing  for 
the  acquisition  of  a  right  to  the  use  of  running  water  by  ap- 
propriation, with  a  proviso  that,  in  all  streams  not  more  than 
twenty  feet  in  width,  the  rights  of  the  riparian  proprietor 
should  not  be  affected  by  the  act,  is  unconstitutional.  The 
court  proceeded  upon  the  ground  that  riparian  rights  had  be- 
come vested  in  all  the  streams  of  the  state  prior  to  the  passage 

streams  or  otherwise,  there  could  be  no  occasion  for  the  applica- 
tion of  the  common-law  doctrine  of  riparian  proprietorship  with 
respect  to  the  waters  of  those  streams.  The  government,  by  its 
silent  acquiescence,  assented  to  the  general  occupation  of  the  public 
lands  for  mining,  and,  to  encourage  their  free  and  unlimited  use 
for  that  purpose,  reserved  such  lands  as  were  mineral  from  sale, 
and  the  acquisition  of  title  by  settlement.  And  he  who  first  con- 
nects his  own  labor  with  property  thus  situated  and  open  to  gen- 
eral exploration  does,  in  natural  justice,  acquire  a  better  right  to 
its  use  and  enjoyment  than  others  who  have  not  given  such  labor. 
So,  the  miners  on  the  public  lands  throughout  the  Pacific  states 
and  territories,  by  their  customs,  usages,  and  regulations,  every- 
where recognized  the  inherent  justice  of  this  principle." 

4  Clark  v.  Cambridge  &  A.  Irr.  &  Imp.  Co.,  45  Neb.  798,  64  N.  W. 
239. 

•"•Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674;  Barrett  v.  Metcalf,  12 
Tex.  Civ.  App.  247,  33  S.  W.  758. 

(46) 


Ch.  3]  DOCTRINE     OF     APPROPRIATION.  §  24 

of  the  act,  which  was  therefore  a  clear  invasion  of  private 
rights,  within  the  prohibition  of  the  constitution.6  But  this 
objection  to  the  appropriation  statutes  cannot  prevail  where 
no  riparian  rights  have  vested. 

As  has  been  already  stated  in  a  previous  section,  in  many 
of  the  arid  states  the  doctrine  of  riparian  rights  has  never 
been  in  force,  and  hence  riparian  proprietors,  as  such,  have 
never  had  any  rights  which  could  be  in  any  way  affected  by 
the  statutes.  In  some  states,  either  by  the  express  terms  of 
the  statutes,  or  by  judicial  construction,  the  rights  of  riparian 
proprietors  are  saved  from  the  operation  of  the  statutes,  and 
the  doctrine  of  appropriation  is  limited  so  as  to  apply  only 
to  water  on  the  public  lands,  where  no  riparian  rights  in 
private  individuals  can  attach.7  The  statutes,  therefore,  in 
these  states,  are  clearly  not  unconstitutional  on  the  ground 
that  they  impair  vested  rights  of  riparian  proprietors. 

In  a  recent  case  in  the  supreme  court  of  the  United  States 
it  was  held  that  the  power  to  change  the  common-law  rule, 
and  permit  the  appropriation  of  the  water  of  the  streams  with- 

G  Clark  v.  Cambridge  &  A.  Irr.  &  Imp.  Co.,  45  Neb.  798,  64  N.  W. 
239.  In  this  case,  the  court  conceded  the  right  of  appropriation 
for  public  uses  in  the  following  language: 

"That  the  state  may,  in  the  exercise  of  the  right  of  eminent  do- 
main, appropriate  the  water  of  any  stream  to  any  purpose  which 
will  subserve  the  public  interests  is  not  doubted,  and  that  the 
reclamation  of  the  inarable  lands  of  the  state  is  a  work  of  public 
utility,  within  the  meaning  of  the  constitution,  is  a  proposition 
not  controverted  in  this  proceeding.  But  even  the  state  in  its 
sovereign  capacity  is,  as  we  have  seen,  within  the  restrictions  of 
the  constitution,  and  can  take  or  damage  private  property  only 
upon  the  conditions  thereby  imposed.  The  proposition  that  the 
rights  of  riparian  proprietors  were  abolished  by  operation  of  the 
statutes  is  therefore  without  merit." 

7  See  post,  §  25. 

(47) 


§  25  LAW  OP  IRRIGATION.  [Ch.  3 

in  its  domain,  undoubtedly  belongs  to  each  state,  and  possibly 
to  a  territory  as  well,  but  that  to  this  power  there  are  two  lim- 
itations: First,  that,  in  the  absence  of  specific  authority 
from  congress,  a  state  cannot,  by  its  legislation,  destroy  the 
right  of  the  United  States,  as  the  owner  of  lands  bordering 
on  a  stream,  to  the  continued  flow  of  its  waters,  so  far,  at 
least,  as  may  be  necessary  for  the  beneficial  uses  of  the  gov- 
ernment property;  and,  second,  that  it  is  limited  by  the 
superior  power  of  the  general  government  to  secure  the  un- 
interrupted navigation  of  all  navigable  streams  within  the 
limits  of  the  United  States.8  As  will  be  seen  later,  the  right 
of  appropriation  of  the  public  domain  has  been  recognized 
and  confirmed  by  acts  of  congress.9 

§    25.    Extent  of  Application  of  the  Doctrine  of  Appropriation  in 
the  Several  States. 

While  the  doctrine  of  appropriation  prevails  in  all  the 
arid  states,  the  extent  to  which  it  is  carried  is  not  everywhere 
the  same.  The  doctrine  is  wholly  contrary  to,  and  inconsist- 
ent with,  the  common-law  doctrine  of  riparian  rights,  and 
hence,  in  those  states  in  which  the  latter  doctrine  prevails, 
the  doctrine  of  appropriation  applies  only  where  the  common- 
law  doctrine  is  inapplicable, — that  is,  to  streams  in  which  no 
riparian  rights  have  attached.  It  is  accordingly  held  in  these 
states  that  the  doctrine  of  appropriation  applies  to,  and  only 
to,  the  water  on  the  public  lands,  belonging  either  to  the 
state  10  or  to  the  United  States,  and  that  the  right  to  water 

8U.  S.  v.  Rio  Grande  Dam  &  Irr.  Co.,  174  U.  S.  690,  19  Sup.  Ct. 
770. 

»  See  post,  §  26. 

10  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674;  Wood  v.  Etiwanda 
(48) 


Ch.  3]  DOCTRINE      OF     APPROPRIATION.  §   25 

for  irrigation  cannot  be  acquired  by  prior  appropriation, 
where  the  land  has  been  reduced  to  private  ownership.11  The 
right  of  appropriation  cannot  be  exercised  in  these  states, 
as  against  a  riparian  proprietor.12  In  California,  the  statute 
authorizing  the  appropriation  of  water  expressly  provides 
that  the  rights  of  riparian  owners  shall  not  be  affected  by  its 
provisions.13 

In  Texas,  the  statute  provides  that  the  unappropriated 
waters  of  rivers  and  natural  streams  within  the  arid  portions 

Water  Co.,  122  Gal.  152,  54  Pac.  726;  Smith  v.  Denniff  (Mont.,  1900) 
60  Pac.  398;  Carson  v.  Gentner,  33  Ore.  512.  52  Pac.  506. 

11  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674;    City  of  Santa  Cruz  v. 
Enright,  95  Cal.  105,  30  Pac.  197;    Smith  v.  Denniff   (Mont.,  1900) 
60  Pac.  398;  Kaler  v.  Campbell,  13  Ore.  596,  11  Pac.  301;   Simmons 
v.  Winters,  21  Ore.  35,  27  Pac.  7;     Thorpe  v.  Tenem  Ditch  Co.,  1 
Wash.    566,    20    Pac.    588;    Ellis    v.    Pomeroy    Imp.    Co.,    1    Wash. 
572,   21   Pac.   27;    Geddis   v.   Parrish,    1   Wash.   587,   21   Pac.   314; 
Benton  v.  Johncox,  17  Wash.  277,  49  Pac.  495,  61  Am.  St  Rep.  912; 
Offield  v.  Ish  (Wash.,  1899)  57  Pac.  809.     See  the  discussion  in  the- 
early  Montana  case  as  to  the  right  to  appropriate  water.     Thorp  v.. 
Freed,  1  Mont.  651. 

The  existence  of  a  military  reservation  on  public  land  does  not 
affect  the  right  of  an  irrigator  to  appropriate  water  on  the  public 
domain  above  the  reservation,  except  so  far  as  the  water  may 
have  been  previously  appropriated  for  the  use  of  the  military  post. 
Krall  v.  U.  S.,  79  Fed.  241. 

12  Lux  v.  Haggin,   69   Cal.  255,  10  Pac.   674;  .  Vernon  Irr.   Co.  v. 
City  of  Los  Angeles,  106  Cal.  237,  39  Pac.  762;    Hargrave  v.  Cook, 
108  Cal.  72,  41  Pac.  18;   and  cases  cited  in  note  immediately  pre- 
ceding. 

is  Civ.  Code  Cal.  §  1422.  This  section  is  construed  as  sav- 
ing and  protecting  the  riparian  rights  of  all  those  who,  under 
the  land  laws  of  the  state,  shall  have  acquired  from  the  state  the 
right  of  possession  to  a  tract  of  riparian  land  prior  to  the  initia- 
tion of  proceedings  to  appropriate  water  in  accordance  with  the 
provisions  of  the  Code,  and  limiting  the  right  of  appropriation  to 
the  water  on  land  belonging  to  the  state  or  the  United  States. 
Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674. 

(49) 


§   25  LAW  OF  IRRIGATION.  [Ch.  3 

of  the  state,  in  which,  by  reason  of  the  insufficient  rainfall, 
irrigation  is  necessary  for  agricultural  purposes,  may  be  ap- 
propriated; provided,  however,  that  the  water  may  not  be 
diverted  so  as  to  deprive  riparian  proprietors  of  the  use  of 
the  water  for  domestic  use.14  This  act  is  not  inoperative  be- 
cause of  its  failure  to  designate  the  territory  which  shall  be 
deemed  the  arid  portion  of  the  state.  This  is  a  question  of 
fact,  to  be  determined  as  any  other  fact,  and  the  courts  have 
not  judicial  knowledge  of  what  territory  is  embraced  within 
the  arid  region,15  though  it  is  a  matter  of  common  knowl- 
edge that  there  are  portions  of  the  state  where  agriculture 
cannot  be  successfully  conducted  without  irrigation.16 

Where  it  does  not  appear  whether  the  land  through  which 
a  stream  from  which  a  right  to  divert  water  is  claimed  by 
virtue  of  an  appropriation  thereof  was  public  or  private 
property  at  the  time  of  such  appropriation,  it  will  not  be  pre- 
sumed that  such  land  was  public,  but  the  burden  of  proving 
this  fact  rests  upon  the  claimant.17 

In  the  states  in  which  the  doctrine  of  riparian  rights  is  not 
in  force,  there  is  no  restriction  upon  the  exercise  of  the  right 
of  appropriation,  so  far  as  the  character  of  the  land  to  be  irri- 
gated, or  from  which  the  water  is  to  be  taken,  is  concerned ; 
but  the  right  extends  to  the  unappropriated  water  of  all  the 
natural  streams  within  the  state,  whether  the  land  by  or 
through  which  they  flow  be  private  or  a  part  of  the  public 
domain.18 

I*  Supp.  Sayles'  Civ.  St.  art.  3000a,  §§  1,  2. 
is  McGhee  Irr.  Ditch  Co.  v.  Hudson,  85  Tex.  587,  22  S.  W.  398. 
See,  also,  Slattery  v.  Harley,  58  Neb.  575,  79  N.  W.  151. 
leTolle  v.   Correth,   31   Tex.   362,   98  Am.   Dec.   540;    Mud   Creek 
Irr.,  Agr.  &  Mfg.  Co.  v.  Vivian,  74  Tex.  170,  11  S.  W.  1078. 
"City  of  Santa  Cruz  v.  Enright,  95  Cal.  105,  30  Pac.  197. 
is  See  post,  §  50. 
The  right   acquired   by   priority  of   appropriation   is   entitled   to 

(50) 


Ch.  3]  DOCTRINE     OF     APPROPRIATION.  §  26 

II.     APPROPRIATION  UNDER  ACTS  OF  CONGRESS. 

§    26.    Appropriation  of  Water  on  the  Public  Domain. 

We  have  several  times  had  occasion  to  speak  of  the  appro- 
priation of  water  on  the  public  domain,  and  it  is  now  pro- 
posed to  examine  this  question  more  in  detail,  with  especial 
reference  to  the  acts  of  congress  on  the  subject.  It  will  be 
remembered,  in  this  connection,  that  the  title  to  the  land  now 
embraced  in  the  western  states  and  territories  was  originally 
vested  in  the  United  States,  subject  to  the  Indian  right  of 
occupancy,  where  this  existed.  This  land  has  now  been  very 
largely  reduced  to  private  ownership,  but  large  tracts  of  land 
still  remain  throughout  this  region  to  which  the  government 
title  is  not  yet  extinguished,  and  which  constitute  the  public 
domain.  The  power  to  control  or  dispose  of  the  public  land 
is  vested  exclusively  in  the  United  States  as  proprietor,  and 
the  state  governments  have  no  jurisdiction  to  pass  laws  in 
any  way  infringing  upon  the  proprietary  rights  of  the  general 
government. 

The  United  States  government,  as  the  proprietor  of  the 
public  lands,  has  the  same  property  and  right  in  the  streams 
flowing  through  them  as  any  other  proprietor  would  have. 
Such  streams  are  part  and  parcel  of  the  land  through  which 
they  flow,  inseparably  annexed  to  the  soil,  and  the  use  thereof 
as  an  incident  to  the  soil  passes  with  the  land  to  a  patentee  of 
the  government,  and  no  occupancy  or  appropriation  of  water 

protection  as  well  after  patent  to  a  third  party  of  the  land  over 
which  the  natural  stream  flows,  as  when  such  land  is  a  part  of 
the  public  domain,  and  it  is  immaterial  whether  or  not  it  be  men- 
tioned in  the  patent,  and  expressly  excluded  from  the  grant. 
Coffin  v.  Left  Hand  Ditch  Co.,  6  Colo.  443. 

(51) 


§   26  LAW  OF  IRRIGATION.  Ch.  3] 

on  the  public  domain,  or  local  legislation  or  judicial  action, 
can  in  any  way  restrict  or  affect  the  operation  of  the  govern- 
ment patent.19  The  right  to  use  the  water  on  the  public  do- 
main for  irrigation  or  other  purposes  can  be  derived  only 
from  the  federal  government.  As  has  been  stated  in  a  pre- 
vious section,  however,  at  an  early  date,  under  the  pressure 
of  local  conditions  and  necessities,  the  doctrine  was  estab- 
lished in  California,  and  subsequently  in  other  states,  that 
a  right  to  the  use  of  water  of  natural  streams  on  the  public 
domain  for  mining,  agricultural,  and  other  purposes  might 
be  acquired  by  priority  of  appropriation.  The  water  rights 
thus  acquired  rested  for  a  long  time  solely  upon  the  local 
customs,  laws,  and  decisions  of  courts,  and  of  course  could  not 
have  been  asserted  against  the  general  government,  had  the 
latter  seen  fit  to  object.  But  the  acquisition  of  water  rights 
on  the  public  domain  in  this  manner  has  always  been  acqui- 
esced in  and  encouraged  by  the  national  government,  and 
was  finally  expressly  sanctioned  by  the  act  of  congress  of 
July  26,  1866,  in  a  section  embodied  in  the  United  States 
Revised  Statutes  (§  2339 ).20  It  is  to  be  noted  that  this  stat- 
ute simply  confirmed  to  the  owners  of  water  rights  on  the 
public  domain  the  same  rights  which  they  held  under  the 
local  customs,  laws  and  decisions  of  courts  prior  to  its  en- 
actment; that  it  did  not  introduce,  and  was  not  intended  to 

i»  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176,  Fed.  Gas.  No. 
14,371 ;  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674 ;  Vansickle  v.  Haines, 
7  Nev.  249. 

The  water  in  a  nonnavigable  stream  flowing  over  the  public  do- 
main is  a  part  and  parcel  thereof,  and  the  national  government 
can  sell  or  grant  the  same,  or  the  use  thereof,  separate  from  the 
rest  of  the  estate,  under  such  conditions  as  may  seem  to  it  prop- 
er. Howell  v  Johnson,  89  Fed.  556. 
20  See  statute  in  Appendix. 

(52) 


Ch.  3]  DOCTRINE      OF     APPROPRIATION.  §  27 

introduce,  any  new  system,  or  to  evince  any  new  or  different 
policy  on  the  part  of  the  general  government;  but  that  it 
recognized,  sanctioned,  protected  and  confirmed  the  system 
already  established  by  the  local  customs,  laws  and  decisions 
of  courts,  and  provided  for  its  continuance.21  It  was  "rather 
the  voluntary  recognition  of  a  pre-existing  right  of  possession, 
constituting  a  valid  claim  to  its  continued  use,  than  the  estab- 
lishment of  a  new  one."  22 

The  protection  afforded  by  these  acts  is  wholly  independ- 
ent of  state  lines,  and  an  appropriator  of  water  for  irriga- 
tion in  one  state  from  a  stream  flowing  in  two  states  may 
maintain  a  bill  in  a  federal  court  to  enjoin  the  diversion  of  the 
water  of  the  stream,  to  his  injury,  by  a  later  appropriator 
in  the  other  state.23 

The  act  of  1866  is  prospective  in  its  operation,  and  cannot 
be  construed  so  as  to  affect  the  rights  of  one  who  has  acquired 
title  to  land  before  the  passage  of  the  act.24 

§    27.    How  Existence  of  Water  Bight  on  Public  Domain  is  De- 
termined. 

When  a  possessory  right  to  the  use  of  water  is  claimed, 
the  question  whether  or  not  such  right  exists  is  to  be  deter- 

2iBasey  v.  Gallagher,  20  Wall.  (U.  S.)  670;  Jennison  v.  Kirk, 
98  U.  S.  453;  Broder  v.  Water  Co.,  101  U.  S.  274;  Krall  v.  U.  S., 
79  Fed.  241;  Cave  v.  Crafts,  53  Cal.  135;  Osgood  v.  El  Dorado 
Water  &  Deep  Gravel  Min.  Co.,  56  Cal.  571;  Ely  v.  Ferguson,  91 
Cal.  187,  27  Pac.  587;  City  of  Denver  v.  Mullen,  7  Colo.  345,  3  Pac. 
693;  Platte  Water  Co.  v.  Northern  Colo.  Irr.  Co.,  12  Colo.  525,  21  Pac. 
711;  Jones  v.  Adams,  19  Nev.  78,  6  Pac.  442;  Carson  v.  Gentner,  33 
Ore.  512,  52  Pac.  5u6;  Benton  v.  Johncox,  17  Wash.  277,  49  Pac. 
495. 

22  Broder  v.  Water  Co.,  101  U.  S.  274. 

23  Howell  v.  Johnson,  89  Fed.  556. 

2*  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176,  Fed.  Gas.  No.  14,- 
371;    Union  Mill  &  Min.  Co.  v.  Dangberg,  2  Sawy.  450,  Fed.  Cas. 

(53) 


§  28  LAW  OF  IRRIGATION.  [Oh.  3 

mined  by  reference  to  the  local  customs,  laws  and  decisions, 
and,  when  the  right  is  thus  ascertained,  the  statute  has  the 
force  of  confirming  it  to  the  person  entitled  under  the  local 
customs,  laws  and  decisions.25  The  union  of  the  three  condi- 
tions named  in  the  statute — that  is,  that  the  right  should  be 
recognized  and  acknowledged  by  the  local  customs,  by  the 
laws,  and  by  the  decisions  of  courts — is  not  essential  to  the 
perfection  of  the  right  by  priority;  and,  in  case  of  conflict 
between  a  local  custom  and  a  statutory  regulation,  the  latter, 
as  of  superior  authority,  must  necessarily  prevail.26  What  is 
the  customary  law  in  respect  to  the  use  of  water  may  be 
shown  by  evidence  of  the  local  customs,  laws  and  decisions,27 
of  which,  indeed,  the  local  courts,  at  least,  will  take  judicial 
notice  as  of  the  public  laws.28 

8    28.    Relative  Rights  of  Appropriator  of  Water  and  Grantee 
of  Land. 

As  land  belonging  to  the  public  domain  is  granted  by  the 
general  government  to  private  individuals,  some  conflict  of 
claims  between  the  grantee  of  the  land  and  an  appropriator  of 
water  thereon  might  naturally  be  expected.  It  is  proposed  in 
this  and  the  next  two  sections  to  discuss  the  relative  rights  of 
the  grantee  and  appropriator  in  such  case.  To  avoid  con- 
fusion of  mind  in  reading  these  sections,  the  reader  should 

No.  14,370;  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674;  Beaver  Brook 
Reservoir  &  Canal  Co.  v.  St.  Vrain  Reservoir  &  Fish  Co.,  6  Colo. 
App.  130,  40  Pac.  1066. 

25  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176,  Fed.  Cas.  No. 
14,371. 

26Basey  v.  Gallagher,  20  Wall.  (U.  S.)  670;  Drake  v.  Earhart, 
2  Idaho,  716,  23  Pac.  541 ;  Barnes  v.  Sabron,  10  Nev.  217. 

2?Basey  v.  Gallagher,  20  Wall.  (U.  S.)  670. 

28  dough  v.  Wing  (Ariz.,  1888)   17  Pac.  453. 

(54) 


Oh.  3]  DOCTRINE      OP     APPROPRIATION.  §  28 

remember  that  in  some  of  the  arid  states  the  doctrine  of  ap- 
propriation applies  only  to  water  on  the  public  lands,  and  as 
to  streams  flowing  by  or  through  the  lands  of  private  persons, 
the  rights  of  riparian  proprietors  remain  as  at  common  law  \ 
but  in  other  states,  riparian  owners,  as  such,  have  no  rights 
in  the  water  of  natural  streams,  but  all  unappropriated  water, 
whether  found  on  public  or  private  land,  is  subject  to  appro- 
priation. It  should  be  further  borne  in  mind  that  after  the 
government  title  to  land  has  been  extinguished,  and  it  has  be- 
come a  part  of  the  territory  of  a  state,  and  subject  in  all 
respects  to  its  jurisdiction,  the  question  as  to  whether  water 
rights  may  be  acquired  on  such  land  by  appropriation  must 
be  determined  solely  by  the  state  law.  In  the  present  dis- 
cussion, we  are  to  consider  the  rights  of  parties  under  the 
acts  of  congress  only.  The  statements  made  in  what  follows 
should  be  interpreted,  and,  when  necessary,  limited,  in  ac- 
cordance with  what  has  just  been  said. 

We  will  consider  first  the  effect  of  a  government  grant  of 
public  land  on  the  rights  of  one  who  has  appropriated  water 
on  such  land  while  it  was  yet  a  part  of  the  public  domain,  and 
then  what  rights,  if  any,  can  be  acquired  under  the  acts  of 
congress  by  appropriation  after  title  to  the  land  has  vested  in 
the  grantee. 

A  grant  of  public  land  of  the  United  States  carries  with  it 
the  common-law  rights  to  the  nonnavigable  streams  thereon, 
unless  the  waters  are  expressly  or  impliedly  reserved  by  the 
terms  of  the  patent,  or  of  the  statute  granting  the  land,  or  by 
the  congressional  legislation  authorizing  the  patent  or  other 
muniment  of  title.  "To  hold  otherwise  would  be  to  hold  not 
only  that  the  lands  of  the  United  States  are  not  taxable,  and 
that  the  primary  disposal  of  them  is  beyond  state  interference, 
but  that  the  United  States,  as  a  riparian  owner  within  the 

(55) 


§  28  LAW  OF  IRRIGATION.  [Ch.  3 

state,  has  other  and  different  rights  than  other  riparian  own- 
ers, including  its  own  grantees."29 

As  we  have  already  seen,  however,  the  United  States,  at 
first  by  its  silent  asquiescence,  and  finally  by  express  statu- 
tory enactment,  has  always  recognized  the  doctrine  of  appro- 
priation of  water  on  the  public  lands,  and  hence  it  would 
seem  to  follow,  as  a  necessary  consequence,  that  any  grants 
by  the  United  States  of  land  upon  which  water  rights  have 
been  acquired  with  such  implied  or  express  permission  of  the 
government  would  be  subject  to  the  burden  of  such  vested 
rights.  This  has  been  made  the  subject  of  an  express  statute, 
enacted  July  9,  1870,  as  an  amendment  to  the  act  of  1866. 
By  this  act  it  is  provided  that  all  patents  granted,  or  pre- 
emptions allowed,  are  subject  to  any  vested  or  accrued  water 
rights  or  rights  to  ditches  and  reservoirs  used  in  connection 
with  such  water  rights  as  may  have  been  acquired  under  or 
recognized  by  the  act  of  1866.30  This  act,  like  the  act  of 
1866,  is  simply  declaratory  of  the  pre-existing  law.31  Since 
the  passage  of  the  act  of  1870,  it  has  been  repeatedly  held  by 
the  courts,  sometimes  with,  and  sometimes  without,  express 
reference  to  the  act,  that  one  who  acquires  title  to  public 
land  takes  the  same  subject  to  any  vested  rights  to  water 
and  ditches  thereon.32  And  one  who  constructs  a  ditch,  and 

29  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674. 

so  Rev.  St.  U.  S.  §  2340. 

si  See  Broder  v.  Water  Co.,  101  U.  S.  274;  Hammond  v.  Rose,  11 
Colo.  324,  19  Pac.  466,  7  Am.  St.  Rep.  258. 

32  United  States:     Cruse  v.  McCauley,  96  Fed.  369. 

California:  Osgood  v.  El  Dorado  Water  &  Deep  Gravel  Min. 
Co.,  56  Cal.  571;  Farley  v.  Spring  Valley  Min.  &  Irr.  Co.,  58 
Cal.  142;  Lytle  Creek  Water  Co.  v.  Perdew,  65  Cal.  447,  4  Pac. 
426;  Judkins  v.  Elliott  (Cal.)  12  Pac.  116;  South  Yuba  Water  & 
Min.  Co.  v.  Rosa,  80  Cal.  333,  22  Pac.  222;  De  Necochea  v.  Curtis, 

(56) 


Ch.  3]  DOCTRINE     OF     APPROPRIATION.  §  29 

appropriates  and  uses  the  water  of  a  stream,  upon  the  public 
land,  acquires  thereby,  as  against  a  subsequent  purchaser  from 
the  United  States,  as  complete  and  perfect  a  right  to  main- 
tain his  ditch,  and  have  the  water  flow  to,  in  and  through  the 
same,  as  though  such  right  or  easement  had  vested  in  him  by 
grant.33  And  indeed  it  is  held  that  the  act  of  congress  op- 
erates as  a  grant  from  the  United  States  of  the  water  appro- 
priated on  the  public  domain,  and  of  the  right  of  way  for  the 
ditches  and  canals  by  which  it  is  diverted  and  conveyed.34 
§  29.  Same— Appropriation  Subsequent  to  Grant. 

In  the  preceding  section  we  have  considered  the  relative 
rights  of  an  appropriator  of  water  on  the  public  domain  and  a 
grantee  of  such  land  from  the  government  where  the  appro- 
priation was  made  prior  to  the  grant.  It  now  remains  to 
consider  the  effect  of  an  appropriation  made  after  the  title 
to  the  land  has  vested  in  the  grantee,  or  he  has  acquired  equit- 
able rights  therein.  Clearly,  in  such  case,  the  question  pre- 
80  Gal.  397,  20  Pac.  563,  22  Pac.  198;  Faulkner  v.  Rondoni,  104 
Cal.  140,  37  Pac.  883;  McGuire  v.  Brown,  106  Cal.  660,  39  Pac. 
1060. 

Colorado:  Denver,  T.  &  Ft.  W.  R.  Co.  v.  Dotson,  20  Colo.  304, 
38  Pac.  322;  Beaver  Brook  Reservoir  &  Canal  Co.  v.  St.  Vrain  Res- 
ervoir &  Fish  Co.,  6  Colo.  App.  130,  40  Pac.  1066. 

Idaho:     Drake  v.  Earhart,  2  Idaho,  7i6,  23  Pac.  541. 

Nevada:     Barnes  v.  Sabron,  10  Nev.  217. 

Oregon:  Kaler  y.  Campbell,  13  Ore.  596,  11  Pac.  301;  Tolman 
v.  Casey,  15  Ore.  83,  13  Pac.  669;  Carson  v.  Gentner,  33  Ore.  512,  52 
Pac.  506. 

South  Dakota:      Scott  v.  Toomey,  8  S.  D.  639,  67  N.  W.  838. 

Washington:  Thorpe  v.  Tenem  Ditch  Co.,  1  Wash.  566,  20  Pac. 
588;  Geddis  v.  Parrish,  1  Wash.  587,  21  Pac.  314. 

as  Ware  v.  Walker,  70  Cal.  591,  12  Pac.  475. 

3*  Smith  v.  Hawkins,  110  Cal.  122,  42  Pac.  453;  Wood  v.  Eti- 
wanda  Water  Co.,  122  Cal.  152,  54  Pac.  726;  Smith  v.  Denniff 
(Mont,  1900)  60  Pac.  398. 

(57) 


§  30  LAW  OF  IRRIGATION.  [Ch.  3 

sented  is,  in  general,  the  same  as  that  involved  in  any  other 
case  of  appropriation  of  water  on  private  lands. 

The  practical  construction  of  the  act  of  1866  has  been  that, 
as  long  as  land  belongs  to  the  United  States,  the  waters  flowing 
over  it  are  subject  to  appropriation  for  any  of  the  purposes 
named  in  the  statute,  when  such  appropriation  was  recognized 
by  the  local  customs,  laws  or  decisions  of  the  courts.  But  if 
the  water  was  not  so  appropriated  when  it  flowed  over  the 
public  domain,  it  is  not  subject  to  appropriation  after  the 
land  over  which  it  flows  has  become  private  property.35  The 
act  of  congress  applies  only  to  the  public  domain.36  The 
clause  contained  in  the  United  States  land  patents,  that  such 
patents  shall  be  subject  to  any  vested  and  accrued  water  rights 
for  mining,  agricultural,  manufacturing  or  other  purposes, 
means  subject  to  such  rights  as  existed  when  the  patent  took 
effect.37  An  appropriation  of  water  on  the  public  lands,  made 
after  the  acts  of  1866  and  1870,  gives  to  the  appropriator  no 
right  to  the  water  appropriated,  as  against  a  grantee  of  ripa- 
rian lands  under  a  grant  made  or  issued  prior  to  the  act  of 
1866,  except  in  a  case  where  the  water  so  subsequently  appro- 
priated was  expressly  reserved  by  the  terms  of  such  grant.38 
Nor  can  such  appropriation  affect  the  rights  of  a  grantee, 
where  the  grant  was  made  after  the  act  of  1866,  but  before 
the  appropriation.39 
8  30.  Same— When  Rights  of  Grantee  Attach. 

It  is  clearly  of  great  importance,  in  the  application  of  the 

ss  Cruse  v.   McCauley,   96   Fed.   369. 

se  Smith  v.  Denniff  (Mont.,  1900)  60  Pac.  398;  Carson  v.  Gentner, 
33  Ore.  512,  52  Pac.  506. 

37  Cruse  v.   McCauley,  96  Fed.  369. 

ss  Lux  v.  Haggln,  69  Cal.  255,  10  Pac.  674.  See  Vansickle  v, 
Haines,  7  Nev.  249. 

39  See  ante,  §  25. 

(58) 


Oh.  3]  DOCTRINE      OF     APPROPRIATION.  §  30 

principles  stated  in  the  sections  immediately  preceding,  to 
know  just  when  the  rights  of  a  patentee  from  the  government 
become  vested.  Where  a  patent  to  government  land  has 
been  actually  issued  before  any  appropriation  of  water  has 
been  made  on  such  land,  the  question  is,  of  course,  free  from 
difficulty,  for  the  rights  of  the  patentee  will  have  vested  prior 
to  any  possible  claim  that  may  be  asserted  by  the  appropria- 
tor,  whether  such  rights  be  considered  as  attaching  at  the  time 
of  taking  the  first  steps  to  secure  title  to  the  land,  or  not  until 
the  actual  issuance  of  the  patent.  But  a  case  may  arise  in 
which  the  appropriation  was  made  after  the  government's 
grantee  has  taken  steps  to  secure  title,  but  before  the  patent 
is  issued.  In  such  case,  it  is  of  vital  importance  to  deter- 
mine whether  the  grantee  has  any  rights  before  securing  the 
patent.  So  far  as  the  question  has  been  presented  for  judi- 
cial determination,  the  courts  have  uniformly  held  that  in 
such  case,  where  the  grantee  has  done  all  that  i?  required  of 
him  to  entitle  him  to  a  patent,  which  is  subsequently  issued 
to  him,  his  rights  will  relate  back  at  least  to  the  time  when 
his  compliance  with  the  statutory  requirements  was  com- 
plete.40 And  although  the  contrary  was  previously  held  in 
California  and  Washington,41  it  is  now  settled  by  a  decision 
of  the  supreme  court  of  the  United  States  that,  in  such  case, 

40  Union  Mill  &  Min.  Co.  v.  Dangberg,  2  Sawy.  450,  Fed.  Cas. 
No.  14,370. 

«  Farley  v.  Spring  Valley  Min.  &  Irr.  Co.,  58  Cal.  142;  Thorpe 
v.  Tenem  Ditch  Co.,  1  Wash.  566,  20  Pac.  588;  Ellis  v.  Pomeroy  Imp. 
Co.,  1  Wash.  572,  21  Pac.  27. 

The  case  of  Osgood  v.  El  Dorado  Water  &  Deep  Gravel  Min. 
Co.,  56  Cal.  571,  although  it  appears  to  hold  that  a  grantee's  rights 
date  only  from  the  issuance  of  his  patent,  was  decided  upon  the 
peculiar  facts  of  that  case,  and  does  not  conflict  with  the  doctrine 
stated  in  the  text. 

(59) 


§   30  LAW  OP  IRRIGATION.  [Gh.  3 

the  rights  of  the  patentee  will  relate  back  to  the  date  of  his 
initiatory  act  to  acquire  title,  and  will  cut  off  any  intervening 
adverse  claims  to  water  rights.42  Moreover,  the  rights  of  a 
settler  will  be  protected  as  against  an  appropriator  of  water, 
although  h,e  has  not  yet  Secured  a  patent.  Thus,  in  a  recent 
California  case,  the  facts  were  as  follows :  A  person  intend- 
ing to  appropriate  the  water  of  a  spring  on  certain  surveyed 
public  lands,  posted  a  notice  of  appropriation,  which,  how- 
ever, by  reason  of  its  failure  to  conform  to  the  requirements 
of  the  state  statute  as  to  notice,  was  invalid  and  conferred  no 
rights.  On  the  same  day  he  made  an  excavation  in  the 
spring  for  the  purpose  of  marking  the  place  of  his  intended 
diversion,  and  a  few  days  later  bought  materials  for  making 
the  diversion,  but  did  not  complete  it.  In  the  meanwhile, 
another  settled  upon  the  land  where  the  spring  was  located, 
built  a  house  thereon,  and  filed  an  affidavit  in  conformity  of 
the  state  possessory  act.  After  possession  had  been  so  taken, 
the  appropriator  attempted  to  complete  his  diversion,  but 
was  prevented  by  the  settler  from  doing  so,  and  thereupon 
brought  an  action  against  the  latter  to  enjoin  him  from  inter- 
fering with  the  completion  of  the  diversion.  It  was  held 
that  the  action  could  not  be  maintained.43 

42  Sturr  v.  Beck,  133  U.  S.  541,  10  Sup.  Ct.  350,  affirming  6  Dak. 
71,  50  N.  W.  486;  McGuire  v.  Brown,  106  Gal.  660,  39  Pac.  1060; 
Faull  v.  Cooke,  19  Ore.  455,  26  Pac.  662,  20  Am.  St.  Rep.  836. 

See,  also,  Cruse  v.  McCauley,  96  Fed.  369;  City  of  Denver  v. 
Mullen,  7  Colo.  345,  3  Pac.  693;  Scott  v.  Toomey,  8  S.  D.  639,  67 
N.  W.  838;  Benton  v.  Johncox,  17  Wash.  277,  49  Pac.  495. 

«  Taylor  v.  Abbott,  103  Cal.  421,  37  Pac.  408. 

(60) 


Ch.  3]  DOCTRINE      OF     APPROPRIATION.  §§  31-32 

III.     WHAT  WATER  MAY  BE  APPROPRIATED. 

§    31.    General  Statement— Natural  Streams  Subject  to  Appropri- 

tion. 

The  statutes  or  constitutional  provisions  by  which  the  right 
of  appropriation  is  conferred  or  confirmed  define  in  general 
terms  the  water  in  respect  to  which  the  right  may  be  exer- 
cised. The  provisions  are  necessarily  very  similar,  extend- 
ing the  right  either  to  the  rivers  and  streams,  sometimes  qual- 
ified as  "natural  streams,"  of  the  state,  or  to  running  water 
flowing  in  a  river  or  stream,  or  down  a  canyon  or  ravine.44 

§    32.    What  Constitutes  a  Stream  or  Watercourse. 

To  constitute  a  stream  or  watercourse,  in  the  sense  contem- 
plated in  the  present  section,  there  must  be  water  naturally 
and  usually  flowing  in  a  definite  direction,  and  in  a  well-de- 
fined bed  or  channel.  It  is  not  necessary  that  the  flow  should 
be  continuous  and  uninterrupted.  The  channel  may,  in  cer- 
tain seasons,  be  dry,  either  from  total  failure  of  water,  or  by 
reason  of  the  sinking  of  the  water  into  the  ground,  so  as  to 
form  a  subterraneous  stream.45  But  the  water  must  flow  in 
a  definite  channel.  Water  descending  from  the  hills,  with- 
out any  definite  channel,  and  only  in  times  of  rain  or  melting 
snow,  does  not  constitute  a  stream  or  watercourse.46  It  is  not 
essential,  however,  that  the  banks  should  be  unchangeable,  or 

4*  See  Appendix. 

^s  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674;  Gillett  v.  Johnson, 
30  Conn.  180;  Barnes  v.  Sabron,  10  Nev.  217;  Simmons  v.  Winters, 
21  Ore.  35,  27  Pac.  7;  Geddis  v.  Parrish,  1  Wash.  587,  21  Pac.  314; 
Case  v.  Hoffman,  84  Wis.  438,  54  N.  W.  793. 

46  Simmons  v.  Winters,  21  Ore.  35,  27  Pac.  7.  In  this  case,  Lord, 
J.,  after  reviewing  the  authorities,  said:  "The  conclusion  to  be 
deduced  from  these  decisions  is  that  a  water  course  is  a  stream 
of  water  usually  flowing  in  a  particular  direction,  with  well-de- 
fined banks  and  channels,  but  that  the  water  need  not  flow  con- 
tinuously,— the  channel  may  sometimes  be  dry;  that  the  term 

(61) 


§   32  LAW  OF  IRRIGATION.  Oh.  3] 

that  there  should  always  be  everywhere  a  visible  change  in 
the  angle  of  ascent  marking  the  line  between  bed  and  banks. 
NOT  does  the  fact  that  along  the  course  of  the  stream  there 
may  be  shallow  places  where  the  water  spreads,  and  where 
there  is  no  distinct  ravine  or  gully,  affect  its  character  as  a 
watercourse.47 

To  illustrate  these  principles:  It  has  been  held  that  wa- 
ter flowing  from  springs  may  be  appropriated  by  means  of  a 
ditch  taking  the  water  directly  from  the  spring.48  The  fact 
that  a  stream  has  its  source  in  a  flowing  spring  does  not 
change  its  nature,  or  exempt  its  waters  from  appropriation.49 

A  ditch  through  which  the  waters  of  a  natural  stream  are 
diverted,  although  consisting  partly  of  natural  ravines  or  de- 
pressions caused  by  occasional  bodies  of  surface  water  de- 
scending from  the  hills  during  times  of  melting  snow  and  ice, 
is  not  a  watercourse.50 

'water  course'  does  not  include  water  descending  from  the  hills, 
down  the  hollows  and  ravines,  without  any  definite  channel,  only 
in  times  of  rain  and  melting  snow,  but  that,  where  water,  owing 
to  the  hilly  or  mountainous  configuration  of  the  country,  ac- 
cumulates in  large  quantities  from  rain  and  melting  snow,  and 
at  regular  seasons  descends  through  long,  deep  gullies  or  ravines 
upon  the  lands  below,  and  in  its  onward  flow  carves  out  a  dis- 
tinct and  well-defined  channel,  which,  even  to  the  casual  glance, 
bears  the  unmistakable  impress  of  the  frequent  action  of  run- 
ning water,  and  through  which  it  has  flowed  from  time  imme- 
morial, such  a  stream  is  to  be  considered  a  watercourse,  and  to 
be  governed  by  the  same  rules." 

47  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674. 

See,  also,  West  v.  Taylor,  16  Cal.  165;  Gillett  v.  Johnson,  30 
Conn.  180. 

48  Cross  v.  Kitts,  69  Cal.  217,  10  Pac.  409,  58  Am.  Rep.  558;   De 
Necochea  v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22  Pac.  198;   Ely  v. 
Ferguson,  91  Cal.  187,  27  Pac.  587;   Taylor  v.  Abbott,  103  Cal.  421. 

(62) 


Ch.  3]  DOCTRINE     OF     APPROPRIATION.  §  33 

In  Colorado,  under  a  particular  statute,  it  has  been  held 
that  a  valid  appropriation  may  be  made  from  a  canon  not  a 
running  stream,  but  supplied  with  water  entirely  from  the 
rainfall  in  the  surrounding  hills.51 

§    33.    Percolating  Waters  and  Subterranean  Streams. 

Percolating  waters  have  ordinarily  no  legal  existence  apart 
from  the  soil  in  which  they  occur,  and  therefore  are  not  sub- 
ject to  appropriation  for  irrigation  or  other  purposes.52  But 
where  waters  collect  or  are  gathered  in  a  stream  flowing  un- 
derground in  a  defined  channel,  no  distinction  exists  between 
such  subsurface  streams  and  streams  flowing  upon  the  sur- 
face. They  are  such  property  or  incidents  to  property  as 
may  be  acquired  by  grant  or  by  appropriation,  and  when 
rights  in  them  are  so  acquired,  the  owner  cannot  be  divested 
thereof  by  the  wrongful  acts  of  another.53 

This  principle  is  of  great  importance  when  applied  to  the 
appropriation  of  water  from  well-defined  surface  streams  in 
the  arid  region.  As  is  well  known,  it  frequently  happens 
that  a  great,  and  perhaps  the  greater,  part  of  the  volume  of 
the  streams  in  this  region  passes  slowly  through  the  sand  and 
gravel  beneath  the  bed  of  the  stream  as  a  subsurface  stream 
or  underflow.  These  subterraneous  streams  may  flow  con- 
stantly throughout  the  year,  while  the  surface  stream,  run- 

37  Pac.  408;  Williams  v.  Harter,  121  Cal.  47,  53  Pac.  405. 

«  Geddis  v.  Parrish,  1  Wash.  587,  21  Pac.  314. 

so  Simmons  v.  Winters,  21  Ore.  35,  27  Pac.  7. 

si  Denver,  T.  &  Ft.  W.  R.  Co.  v.  Dotson,  20  Colo.  304,  38  Pac.  322. 

52  Hanson  v.  McCue,  42  Cal.  303,  10  Am.  Rep.  299 ;  Houston  v. 
Leach,  53  Cal.  262;  Southern  Pac.  R.  Co.  v.  Uufour,  95  Cal.  615, 
30  Pac.  783;  Willow  Creek  Irr.  Co.  v.  Michaelson  (Utah,  1900)  60 
Pac.  943.  See,  also,  Painter  v.  Pasadena  Land  &  Water  Co.,  91 
Cal.  74,  27  Pac.  539. 

(63) 


§  34  LAW  OP  IRRIGATION.  [Ch.  3 

ning  full  in  times  of  high  water,  in  times  of  drought  may 
wholly  disappear  in  places,  leaving  the  bed  of  the  stream  dry, 
or  marked  by  pools  of  standing  water.  So  far  as  the  right  of 
appropriation  is  concerned,  there  is  no  difference  between  the 
water  flowing  on  the  surface  and  the  underflow,  passing  be- 
neath the  bed  of  the  stream.54  One  may,  by  appropriate  works, 
develop  and  secure  to  useful  purposes  the  subsurface  flow  of 
the  stream,  and,  by  so  doing,  become  the  legal  appropriator 
of  the  water,  provided  he  does  not  thereby  interfere  with  the 
rights  of  other  persons  in  the  water  of  the  stream.55  But 
where  the  effect  of  such  works  is  to  decrease  the  surface  flow, 
already  fully  appropriated  by  others,  the  latter  will  be  en- 
titled to  an  injunction  restraining  the  later  appropriators 
from  asserting  any  right  to  the  waters,  and  from  developing 
or  extending  their  works.56 

§    34.    Navigable  Streams. 

There  seems  to  be  no  reason  why,  under  the  terms  of  the 
statutes  authorizing  appropriation,  water  may  not  be  appro- 
priated from  navigable  as  well  as  from  nonnavigable  streams, 
so  long  as  the  character  of  the  stream  as  a  navigable  stream  is 
not  thereby  affected.  The  number  of  navigable  streams  in 
the  arid  region  being  small,  the  precise  question  as  to  the 
right  to  appropriate  water  therefrom  has  been  seldom  consid- 
ered. 

The  matter  has  been  discussed  in  a  recent  case  in  the  Uni- 
ted States  supreme  court.  It  was  in  this  case  held  that  the 

ns  Cross  v.  Kitts,  69  Cal.  217,  10  Pac.  409;  Vinland  Irr.  Dist.  v. 
Azusa  Irr.  Co.  (Cal.  1899)  58  Pac.  1057;  McClellan  v.  Hurdle,  3 
Colo.  App.  430,  33  Pac.  280;  Strait  v.  Brown,  16  Nev.  317,  40  Am. 
Rep.  497;  Keeney  v.  Carillo,  2  N.  Mex.  480. 

s*  Vinland  Irr.  Dist.  v.  Azusa  Irr.  Co.   (Cal.,  1899)   58  Pac.  1057; 

(64) 


Ch.  3]  DOCTRINE    OF   APPROPRIATION.  §   34 

power  of  a  state  to  authorize  the  appropriation  of  water  is 
limited  to  the  superior  power  of  the  general  government  to  se- 
cure the  uninterrupted  navigability  of  all  navigable  streams 
within  the  limits  of  the  United  States;  that  the  jurisdiction 
of  the  general  government  over  interstate  commerce  and  its 
natural  highways  vests  in  that  government  the  right  to  take 
all  needful  measures  to  preserve  the  navigability  of  the  navi- 
gable watercourses  of  the  country,  even  as  against  any  state 
action ;  that  the  acts  of  congress  recognizing  and  assenting  to 
the  appropriation  of  water,  and  providing  for  the  reclamation 
of  arid  lands,  were  not  intended  to  act  as  a  release  by  congress 
of  its  control  over  the  navigable  streams  of  the  country,  or  to 
confer  upon  any  state  the  right  to  appropriate  all  the  waters 
of  the  tributary  streams  which  unite  into  a  navigable  water- 
course, so  as  to  destroy  its  navigability.  The  precise  point 
raised  in  the  case  was  whether  the  United  States,  by  the  at- 
torney general,  might  restrain  an  irrigation  company  from 
constructing  a  dam  across  the  Rio  Grande  river,  In  thie  terri- 
tory of  New  Mexico,  and  appropriating  the  waters  of  that 
stream  for  the  purpose  of  irrigation.  It  was  found  that  the 
river  was  not  navigable  within  the  territory,  but  was  naviga- 
ble farther  down,  in  the  state  of  Texas.  It  was  held  that  the 
construction  of  the  dam  should  be  restrained  if  and  to  the  ex- 
tent that  it  would  substantially  diminish  thte  navigability  of 
the  stream,  but  that,  when  proceedings  for  this  purpose  are 
instituted,  it  becomes  a  question  of  fact  whether  the  act 
sought  to  be  enjoined  is  one  which  fairly  and  directly  tends 
to  interfere  with  the  navigability  of  the  stream,  in  which  case 
only,  the  courts  would  be  justified  in  sustaining  any  proceed- 

McClellan  v.  Hurdle,  3  Colo.  App.  430,  33  Pac.  280;  Platte  Val.  Irr. 
Co.  v.  Backers  Irr.,  Mill  &  Imp.  Co.,  25  Colo.  77,  53  Pac.  334. 

(65) 


§   35  LAW  OF  IRRIGATION.  [Ch.  3 

ing  to  restrain  any  appropriation  of  the  upper  waters  of  a 
navigable  stream.57  It  would  seem  that  Avater  might  be  ap- 
propriated from  navigable  streams,  provided  this  does  not  in- 
terfere with  their  navigability.5751 

IV.     WHO  MAY  APPROPKIATK  WATKR 
§    35.    Who  may  Appropriate  Water. 

The  acts  of  congress  governing  the  appropriation  of  water 
impose  no  restrictions  as  to  who  may  make  an  appropriation. 
The  state  statutes  by  which  the  right  of  appropriation  is 
granted  in  some  instances  extend  such  right  to  all  persons  who 
have  title  or  a  possessory  right  to  the  land  to  be  irrigated, 
while  in  other  cases  the  right  is  granted  absolutely,  the  stat- 
utes being  silent  as  to  the  persons  by  whom  it  may  be  enjoy- 
ed.58 In  the  case  of  the  public  domain,  it  is  riot  essential 
that  the  appropriator  should  have  acquired,59  or  have  the 
right  to.  acquire,  title  to  the  land  upon  which  the  water  is  to 
be  used,  and  an  alien  may  make  a  valid  appropriation  of  wa- 
ter on  the  public  land,  although  he  may  be  incompetent  to  ac- 
quire title  to  the  land  itself.60  And  an  alien  may  acquire  and 
hold  a  ditch  and  water  right  until  office  found,  as  against  col- 
es Vinland  Irr.  Dist.  v.  Azusa  Irr.  Co.  (Gal.,  1899)  58  Pac.  1057. 

56  Id. 

57  u.  S.  v.  Rio  Grande  Dam  &  Irr.  Co.,  174  U.  S.  690,  19  Sup.  Ct. 
770. 

The  court  held  that  the  facts  of  the  case  brought  it  within 
the  provisions  of  the  act  of  September  19.  1890  (26  Stat.  p.  454,  § 
10),  prohibiting  the  obstruction  of  navigable  waters.  See  this 
case,  also,  for  a  discussion  as  to  how  far  a  court  may  take  judicial 
notice  that  a  river  is  or  is  not  navigable. 

57a  See  Barrett  v.  Metcalfe,  12  Tex.  Civ.  App.  247,  33  S.  W.  758. 

ss  See  statutes  in  Appendix. 

B9  A  rightful  occupant  of  public  land  may  appropriate  water 
(66) 


Ch.  3]  DOCTRINE      OF     APPROPRIATION.  §  36 

lateral  attacks  by  third  persons  other  than  the  government, 
and,  in  the  absence  of  forfeiture  of  office  found,  may  convey 
title  to  his  grantee.61  So,  also,  an  alien  may  acquire  a  right 
to  the  use  of  water  for  irrigation  from  a  citizen  by  whom  it 
was  appropriated.62 

A  valid  appropriation  of  water  on  the  public  domain  may 
be  made  by  an  Indian,  who  may  maintain  an  action  for  the 
diversion  of  such  water,  and  may  transfer  his  rights  to 
others.63 

Water  may  be  appropriated  by  one  in  the  rightful  posses- 
sion of  private  land,  although  not  the  owner  thereof.  Thus, 
a  tenant  in  possession  of  land,  belonging  to  another  under  a 
contract  with  the  owner  may  divert  and  appropriate  water  for 
use  on  such  land.64  But  it  seems  that  a  valid  appropriation 
cannot  be  made  by  a  mere  trespasser  on  the  land.65 

V.     How  WATER  is  APPROPRIATED. 
S    36,    The  Elements  of  a  Valid  Appropriation. 

Having  discussed  and  defined  the  right  of  appropriation  so 
far  as  the  general  question  of  its  existence  is  concerned,  we 
will  now  consider  how  an  appropriation  of  water  may  be  ef- 
fected. We  observe  first  that,  to  constitute  a  valid  appropria- 
tion of  water,  there  must  be  an  actual  diversion  of  the  water 

thereon,  although  he  has  no  title  to  the  land,  and  although  the 
land  be  unsurveyed.  Ely  v.  Ferguson,  91  Cal.  187,  27  Pac.  587. 

eo  Santa  Paula  Water  Works  v.  Peralta,  113  Cal.  38,  45  Pac.  168. 

See,  also,  Toohey  v.  Campbell  (Mont.,  1900)  60  Pac.  396. 

In  Thorpe  v.  Tenem  Ditch  Co.,  1  Wash.  566,  20  Pac.  588,  it  was 
held  the  statutes  of  Washington  territory  of  1873,  extending  the 
right  of  appropriation  to  landowners,  do  not  affect  the  rule  previ- 
ously established  by  the  local  customs  and  decisions  of  the  courts, 
that  the  right  of  appropriation  might  be  exercised  without  regard 
to  the  question  of  ownership  of  the  land. 

(67) 


§  37  LAW  OF  IRRIGATION.  Ch.  3] 

from  the  natural  stream  or  other  source  of  supply,  with  the 
intent  to  apply  it  to  some  beneficial  use,  followed  by  an  actual 
application  of  the  water  to  the  use  designed,  or  to  some  other 
useful  purpose,  within  a  reasonable  time.66  "An  appropria- 
tion is  an  intent  to  take,  accompanied  by  some  open  physical 
demonstration  of  the  intent,  and  for  some  valuable  use."67 

Besides  the  several  steps  necessary  to  constitute  an  actual 
physical  appropriation  of  water,  some  preliminary  steps, 
such  as  posting  and  recording  a  notice,  are  in  some  states  re- 
quired, not  so  much  as  constituting  a  part  of  the  act  of  mak- 
ing an  appropriation,  as  for  the  purpose  of  fixing  the  rights  of 
the  appropriator.  The  present  chapter  will  be  devoted  to  a 
consideration  of  such  preliminary  requirements,  as  well  as 
the  further  steps  necessary  to  acquire  and  hold  a  water  right 
by  appropriation. 
§  37.  Notice  of  Appropriation— Posting  and  Recording  Notice. 

In  several  of  the  arid  states,  statutes  have  been  enacted  re- 
quiring a  person  desiring  to  appropriate  water  to  post  a  no- 
tice in  writing  in  a  conspicuous  place  at  the  point  of  intended 
diversion,  stating  therein  that  he  claims  a  certain  designated 
quantity  of  the  water,  the  purpose  for  which  he  claims  it, 
and  the  place  of  intended  use,  and  the  means  by  which  he  in- 
tends to  divert  it.  A  copy  of  this  notice  must  be  recorded 
within  a  prescribed  number  of  days  after  it  is  posted,  in  the 
office  of  county  recorder  of  the  county  in  which  the  notice  is 

01  Quigley  v.  Birdseye,  11  Mont.  439,  28  Pac.  741. 

62  Lavery  v.  Arnold  (Ore.,  1899)  57  Pac.  906. 

es  Lobdell  v.  Hall,  3  Nev.  516. 

e*  Smith  v.  Denniff  (Mont.,  1899)  57  Pac.  557,  reversed  on  other 
points  in  60  Pac.  398. 

es  See  Smith  v.  Logan,  18  Nev.  149,  1  Pac.  678;  Alta  Land  & 
Water  Co.  v.  Hancock,  85  Cal.  219,  24  Pac.  645,  20  Am.  St.  Rep.  217. 

(68) 


Ch.  3]  DOCTRINE     OF     APPROPRIATION.  §  37 

posted.  Such  statutes  are  in  force  in  Arizona,  California, 
Idaho,  Kansas,  Montana,  Nebraska,  Utah  and  Washington.68 
In  California,  and  probably  other  states,  the  posting  of  such 
a  notice  was  required  by  local  customs  prior  to  any  legislation 
on  the  subject.69  Such  is  now  the  case  in  Oregon,  in  which 
state  there  is  no  statute  requiring  notice.70  When  required, 
whether  by  statute  or  local  custom,  the  posting  of  a  notice  is 
the  first  step  in  making  an  appropriation.  A  statute  as  to 
notice  is  to  be  construed  strictly,  and  rights  can  be  acquired 
under  it  only  by  strict  compliance  with  its  terms.71 

A  notice  of  appropriation,  and  the  record  of  such  notice 
when  required,  is  evidence  of  the  facts  stated  therein,72  but 

66  LOW  v.  Rizor,  25  Ore.   551,  37  Pac.   82;    Nevada  Ditch  Co.  v. 
Bennett,  30  Ore.  59,  15  Pac.  472.  And  see  the  sections  immediately 
following. 

67  Larimer  Co.  Reservoir  Co.  v.  People,  8  Colo.  614,  9  Pac.  794; 
Ft.  Morgan  Land  &  Canal  Co.  v.  South  Platte  Ditch  Co.,  18  Colo. 
1,  30  Pac.  1032,  both  quoting  McDonald  v.  Bear  River  &  Auburn 
Water  &  Min.  Co.,  13  Cal.  220.     See,  also,  Offield  v.  Ish    (Wash., 

1899)  57  Pac.  809. 

68  See  statutes  in  Appendix. 

In  New  Mexico  no  notice  is  required.     Millheiser  v.  Long  (N.  M., 

1900)  61  Pac.  111. 

69  See  Osgood  v.  El  Dorado  Water  &  Deep  Gravel  Min.  Co..  56 
Cal.  571. 

It  seems  to  have  been  customary  to  post  -a  notice  in  Arizona 
prior  to  the  statute  of  1893.  See  Dyke  v.  Caldwell  (Ariz.,  1888)  18 
Pac.  276. 

In  Montana,  prior  to  the  passage  of  the  act  of  March  12,  1895. 
requiring  notice,  etc.,  no  notice  of  location  or  record  of 
appropriation  was  required.  Murray  v.  Tingley,  20  Mont.  260,  50 
Pac.  723. 

TO  Cole  v.  Logan,  24  Ore.  304,  33  Pac.  568;  Nevada  Ditch  Co.  v. 
Bennett,  30  Ore.  5v>,  45  Pac.  472. 

71  Murray  v.  Tingley,  20  Mont.  260,  50  Pac.  773;  Umatilla  Irr.  Co. 
-v.  Umatilla  Imp.  Co.,  22  Ore.  366,  30  Pac.  30. 

72  Wells  v.  Kreyenhagen,  117  Cal.  329,  49  Pac.  128. 

(69) 


§  38-39  LAW  OF  IRRIGATION.  [Ch.  3 

the  record  of  a  notice,  where  there  is  no  law  authorizing  the 
recording  of  such  notice,  is  of  no  force  or  validity.  It  im- 
parts no  notice,  and  is  not  a  step  in  making  the  appropriation. 
A  certified  copy  of  such  record  is  therefore  not  admissible  in 
evidence.73 

The  posting  of  a  second  notice  is  not  an  abandonment,  but 
an  assertion  of  the  original  claim,  where  the  appropriator  has 
diligently  pursued  the  work  of  appropriation.74 

§    38.    Same— What  is  a  Sufficient  Notice. 

A  notice  of  appropriation  should,  of  course,  contain  all  the 
recitals  called  for  by  the  statute,  and  the  posting  of  a  notice 
which  does  not  conform  to  the  requirements  of  the  statute 
confers  no  rights  upon  the  person  posting  it  as  an  appropri- 
ator of  the  water  claimed.75  But  a  substantial  compliance 
with  the  statute  will  be  sufficient.  No  particular  form  of  no- 
tice is  required,  and  it  seems  that  the  notice  is  sufficient  if  it 
contains  enough  to  put  other  persons  on  inquiry  as  to  the 
rights  of  the  party  posting  it.  Notices  are  liberally  con- 
strued in  favor  of  the  party  by  whom  they  are  posted.76 

§    39.    Same— Appropriation  Without  Posting  of  Notice. 

The  statutes  requiring  the  posting  of  a  notice  expressly 
provide  that,  by  a  compliance  with  the  requirements  as  to- 
posting  the  notice,  and  actually  diverting  and  using  the  wa- 
ter, the  right  of  the  claimant  or  appropriator  to  the  use  of  the 
water  shall  relate  back  to  the  time  of  posting  the  notice,  but 
that  a  failure  to  comply  with  these  requirements  deprives  the 

73  Cruse  v.  McCauley,  96  Fed.  369. 

74  Osgood  v.  El  Dorado  Water  &  Deep  Gravel  Min.  Co.,  56  Cal 
571. 

75  Taylor  v.  Abbott,  103  Cal.  421,  37  Pac.  408. 

76  Osgood  v.  El  Dorado  Water  &  Deep  Gravel  Min.  Co.,  56  Cal. 
1  571;   Floyd  v.  Boulder  Flume  &  Mercantile  Co.,  11  Mont.  435,  2R 

Pac.  450. 

(TO) 


Ch.  3]  DOCTRINE     OF     APPROPRIATION.  §  39 

claimant  of  the  right  to  the  use  of  the  water  as  against  a  sub- 
sequent claimant,  who  complies  therewith.  Several  cases 
have  arisen  in  which  the  rights  of  actual  appropriators,  who 
have  not  complied  with  the  requirements  of  the  statute,  have 
been  adjudicated.  To  determine  rightly  the  effect  of  noncom- 
pliance  with  the  statutes,  it  is  important  to  keep  in  mind  the 
purpose  of  the  legislatures  in  enacting  the  statutes.  Prior  to 
the  passage  of  these  acts,  the  actual  diversion  of  water,  and 
its  application  within  a  reasonable  time  to  a  beneficial  use, 
constituted  a  valid  appropriation  of  water,  and  it  was  the  well- 
established  rule  that,  where  the  appropriator  pursued  the 
work  of  appropriation  with  reasonable  diligence,  his  rights 
related  back  to  the  time  of  commencing  the  work.  Thus,  as 
between  two  appropriators  diverting  water  at  the  same  time, 
prosecuting  the  work  with  reasonable  diligence  to  completion, 
and  the  one  who  first  began  work  had  the  prior  right,  al- 
though the  other  may  have  completed  his  work  first.  This  is 
known  as  the  doctrine  of  "relation  back,"  which  will  be  fur- 
ther considered  in  a  subsequent  section.77 

Questions  of  priority  under  this  rule,  as  well  as  of  the  orig- 
inal capacity,  etc.,  of  ditches,  depended  chiefly  on  oral  testi- 
mony,— that  is,  on  the  memory  of  eye  witnesses,  often  at  fault 
through  lapse  of  time, — so  that  confusion  and  insecurity  of 
vested  rights  resulted.  It  was  to  obviate  this  confusion  and 
insecurity  that  the  statutes  were  enacted.  Notice  was  re- 
quired to  be  posted  at  the  place  of  intended  diversion,  to  ap- 
prise others  who  contemplated  the  acquisition  of  water  rights 
from  the  same  stream  that  the  claimant  posting  the  notice  had 
taken  the  initial  step  in  making  his  appropriation,  while  a 
record  of  such  appropriation  was  required  in  order  to  pre- 

Ti  See  post,  §  51. 

(71) 


§  39  LAW  OF  IRRIGATION.  [Ch.  3 

serve  reliable  evidence  of  the  appropriator's  rights.  It  was 
not  intended  that  one  who  failed  to  comply  with  the  statutory 
requirements,  but  who,  in  the  absence  of  any  conflicting  ad- 
verse right,  had  actually  diverted  water,  and  put  it  to  benefi- 
cial use,  should  acquire  no  title  thereby.  The  statutes  did  not 
change  the  rule  as  to  what  constitutes  an  appropriation,  but 
their  object  was  simply  to  preserve  evidence  of  the  appropria- 
tor's  rights,  and  to  regulate  the  doctrine  of  relation  back.78 

In  accordance  with  these  principles,  it  is  held  that  one  who 
fails  to  comply  with  the  statutory  requirements,  but  who  ac- 
tually diverts  water  and  applies  it  to  a  beneficial  use,  in  the 
absence  of  any  conflicting  adverse  claim,  acquires  a  valid  title 
thereto,  which  cannot  be  divested  by  another  appropriator, 
who  complies  with  the  terms  of  the  statute  after  the  former 
has  completed  his  appropriation.79  In  such  case,  however, 
the  completion,  and  not  the  commencement,  of  the  work  of  ap- 
propriation determines  the  time  when  the  right  of  the  appro- 
priator becomes  vested;  and  as  between  two  appropriators, 
neither  of  whom  has  complied  with  the  statute,  the  one  who 
first  completes  his  ditch  and  uses  the  water  has  the  superior 
right,  although  the  other  may  have  commenced  work  first.80 
As  to  the  effect  of  the  statutes  then  we  observe  that,  where  the 
statutory  requirements  have  been  complied  with,  the  law  of 
relation  is  the  same  as  it  was  prior  to  the  statutes,  but  the  stat- 

'«  See  opinion  of  Buck,  J.,  in  Murray  v.  Tingley,  20  Mont.  260, 
50  Pac.  723. 

79  De  Necochea  v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22  Pac.  198; 
Burrows  v.  Burrows,  82  Cal.  564,  23  Pac.  146;  Wells  v.  Mantes, 
99  Cal.  583,  34  Pac.  324;  Watterson  v.  Saldunbehere,  101  Cal.  107, 
35  Pac.  432;  Senior  v.  Anderson,  115  Cal.  496,  47  Pac.  454;  Murray 
v.  Tingley,  20  Mont.  260,  50  Pac.  723. 

so  Murray  v.  Tingley,  20  Mont.  260,  50  Pac.  723. 

(72) 


Oh.  3]  DOCTRINE     OF     APPROPRIATION.  §  40 

utes  provide  for  the  preservation  of  evidence  of  the  appropria- 
tor's  rights.  '  But  where  the  statutory  requirements  have  not 
been  complied  with,  the  rights  of  the  appropriator,  which,  but 
for  the  statutes,  would  relate  back  to  the  commencement  of 
the  work  of  appropriation,  relate  back  only  to  the  completion 
of  the  work ;  this  being  the  only  change  wrought  in  the  law  by 
the  statutes. 

£    40.    Filing  Map  and  Statement  of  Appropriation. 

In  several  of  the  arid  states,  statutes  have  been  passed  re- 
quiring the  appropriator  to  file  for  record  certain  evidence 
-of  his  appropriation,  for  the  purpose  of  fixing  his  priority. 
The  performance  of  these  requirements,  like  the  posting  and 
filing  of  a  notice,  is  not  strictly  a  part  of  the  act  of  appropria- 
tion, but  is  rather  a  means  of  fixing  and  holding  the  rights  al- 
ready acquired  by  appropriation.  Such  statutes  are  found 
in  Colorado,  Montana  and  Texas.81  The  Colorado  statute, 
.after  having  been  several  times  before  the  court  for  construc- 
tion, was  in  a  late  case  held  unconstitutional  and  void  on  ac- 
count of  the  insufficiency  of  the  title,  under  the  provision  of 
the  state  constitution  that  no  bill  except  general  appropria- 
tion bills  shall  be  passed  containing  more  than  one  subject, 
which  shall  be  clearly  expressed  in  its  title.82 

si  Colorado:     Mills'  Ann.  St.  §§  2265,  2266. 

Montana:     Civ.  Code,  §  1889. 

Texas:     Supp.  Sayles'  St.  art.  3000a,  §  5. 

See  Appendix  for  text  of  these  statutes. 

It  may  be  noted  that  in  Colorado  and  Texas  there  is  no  statute 
requiring  the  posting  of  a  notice  of  appropriation,. but  such  a  statute 
is  in  force  in  Montana. 

82  Lamar  Canal  Co.  v.  Amity  Land  &  Irr.  Co.  (Colo.,  1899)  58 
Pac.  600,  followed  in  Rio  Grande  Land  &  Canal  Co.  v.  Prairie 
Ditch  Co.  (Colo.,  1900)  60  Pac.  726. 

(73) 


§  40  LAW  OF  IRRIGATION.  [Ch.    3 

The  section  in  question  is  the  second  section  of  an  act  pass- 
ed in  1881,  and  was  amended  in  1887.  The  court  in  its 
opinion  did  not  refer  to  the  fact  of  amendment  in  any  way, 
and  it  is  doubtful  whether  such  amendment  may  be  consid- 
ered as  having  any  bearing  on  the  question  of  the  constitu- 
tionality of  the  act,  and  the  original  act  and  this  section  as 
amended  are  therefore  both  void ;  for  the  section  can  derive 
no  validity  as  a  new  statute  from  the  title  of  the  amending 
act,  since  this  is  merely  an  embodiment  of  the  original  title. 

The  object  of  this  statute  being  simply  to  fix  the  priority 
of  appropriations,  it  was  held  that  the  want  of  the  required 
record  could  not  be  invoked  to  justify  the  destruction  of  a 
ditch  owned  by  and  in  the  actual  occupation  and  use  of  an- 
other.83 The  statute,  as  construed,  applied  only  to  ditches 
taking  water  directly  from  a  natural  stream,  and  not  to  ditch- 
es tapping  other  ditches.84 

The  Montana  statute  requires  persons  who  have  acquired 
water  rights  prior  to  the  passage  of  the  act,  within  six  months 
after  the  publication  thereof,  provided  a  notice  of  appropria- 
tion be  not  already  on  record,  to  file  a  verified  declaration  re- 
citing the  same  facts  as  required  in  a  notice,  but  contains  a 
proviso  that  a  failure  to  comply  with  such  requirements  shall 
not  work  a  forfeiture  of  rights  already  acquired,  nor  prevent 
the  claimant  from  establishing  such  rights  in  the  courts.  The 
aim  of  the  legislature  in  enacting  this  statute  seems  to  have 
.been  to  require  water  rights  to  be  recorded  as  provided  in  the 
statute,  and  to  have  precedence  according  to  the  date  of  ac- 
tual appropriation,  to  be  shown  prima  facie  by  the  verified 

ss  Denver,  T.  &  Ft.  W.  R.  Co.  v.  Dotson,  20  Colo.  304,  38  Pac.  322. 
s*  Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld  Irr.  Co.,  24 
Colo.  322,  51  Pac.  496. 

(74) 


Ch.  3]  DOCTRINE     OF     APPROPRIATION.  §   41 

and  recorded  declaration  of  the  claimant,  and  also,  without 
resorting  to  the  harshness  of  attempting  to  forfeit  or  impair 
prior  rights,  to  induce  the  claimants  of  such  rights  to  record 
the  same,  to  the  end  that  they  might  become  more  certainly 
fixed  and  settled,  and  th«  evidence  thereof  be  preserved.  Un- 
der this  act,  it  is  held  that  a  water  right  acquired  by  appro- 
priation prior  to  the  passage  of  the  act,  but  not  recorded  until 
several  years  later,  is  superior  to  one  acquired  and  recorded 
after  the  first  appropriation,  but  before  the  latter  is  record- 
ed.85 Certified  copies  of  such  declarations  have  been  held 
competent  evidence  on  the  question  of  priority  of  water 
rights,  although  the  declarations  were  executed  and  recorded 
prior  to  the  passage  of  the  act  requiring  such  record  of  ap- 
propriations.86 

§    41.    Diversion  of  Water— Water  must  be  Diverted  Within  a 
Reasonable  Time. 

The  appropriator,  in  order  to  secure  and  hold  the  rights 
claimed  by  him,  must  accomplish  the  actual  diversion  of  the 
water  by  means  of  ditches  or  otherwise  within  a  reasonable 
time  after  the  first  assertion  of  his  claim.87  The  statutes  re- 
quiring notice  generally  provide  that  the  work  of  diversion 
must  be  commenced  within  a  specified  number  of  days  after 
the  notice  is  posted,  and  prosecuted  diligently  and  uninter- 
ruptedly to  completion.88  Where  there  is  no  statutory  re- 

ss  Salazar  v.  Smart,  12  Mont.  395,  30  Pac.  676. 

se  Sweetland  v.  Olsen,  11  Mont.  27,  27  Pac.  339. 

87  Cruse  v.  McCauley,  96  Fed.  369;  Osgood  v.  El  Dorado  Water 
&  Deep  Gravel  Min.  Co.,  56  Cal.  571;  Taughenbaugh  v.  Clark,  6 
Colo.  App.  235,  40  Pac.  153;  Keeney  v.  Carillo,  2  N.  Mex.  480;  Cole 
v.  Logan,  24  Ore.  304,  33  Pac.  568;  Nevada  Ditch  Co.  v.  Bennett, 
30  Ore.  59,  45  Pac.  472;  Smyth  v.  Neal,  31  Ore.  105,  49  Pac.  850. 

ss  Consult  statutes  in  Appendix. 

(75) 


§    41  LAW  OF  IRRIGATION.  [Ch.  3 

quirement  as  to  the  time  within  which  the  appropriator  must 
begin  or  complete  the  work  of  diversion,  he  has  a  reasonable 
time  therefor  after  posting  the  notice.89 

What  is  a  reasonable  time  for  the  completion  of  the  work 
will  evidently  depend  on  circumstances.  The  law  does  not 
require  any  unusual  or  extraordinary  efforts  on  the  part  of 
the  appropriator,  but  only  what  is  usual,  ordinary  and  rea- 
sonable. The  appropriator  must  exercise  that  degree  of  dil- 
igence which  will  indicate  the  constancy  and  steadiness  of 
purpose  and  labor  usual  with  men  engaged  in  like  enter- 
prises, who  desire  a  speedy  accomplishment  of  their  designs, 
and  will  manifest  to  the  world  a  bona  fide  intention. to  com- 
plete the  work  without  unnecessary  delay.90 

In  determining  whether  the  appropriator  has  exercised 
due  diligence  in  a  particular  case,  it  is  proper  to  consider  the 
magnitude  and  nature  of  the  work,  and  the  difficulties  and  ob- 
stacles to  be  overcome.91  Due  allowance  should  be  made  for 
delays  occasioned  by  the  inclemency  of  the  weather.92  But 
the  appropriator's  personal  circumstances  have  no  bearing  on 
the  question.  Thus,  he  cannot  plead  his  ill  health  or  lack  of 
pecuniary  means  in  excuse  for  his  failure  to  complete  the 

ss  Cruse  v.  McCauley,  96  Fed.  369;  Dyke  v.  Caldwell  (Ariz.,  1888) 
18  Pac.  276;  Nevada  Ditch  Co.  v.  Bennett,  30  Ore.  59,  45  Pac.  472; 
Smyth  v.  Neal,  31  Ore.  105,  49  Pac.  850. 

A  delay  of  ten  months  after  posting  the  notice  before  construct- 
ing a  ditch  half  a  mile  long  has  been  held  unreasonable.  Cruse 
v.  McCauley,  96  Fed.  369. 

90  Ophir  Silver  Mining  Co.  v.  Carpenter,  4  Nev.  534;  Cole 
v.  Logan,  24  Ore.  304,  33  Pac.  568. 

»i  See  Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld  Irr.  Co., 
24  Colo.  322,  51  Pac.  496;  Nevada  Ditch  Co.  v.  Bennett,  30  Ore.  59, 
45  Pac.  472. 

92  it  is  so  provided  by  statute  in  several  states. 

(76) 


Ch.  3]  DOCTRINE   OF   APPROPRIATION.  §   41 

work  of  diversion  within  a  reasonable  time.93  Although  this 
rule  may  sometimes  work  a  hardship  upon  the  individual  ap- 
propriator, its  justice  seems  unquestionable,  and  the  hard- 
ship suffered  is  simply  one  of  those  evils  necessarily  attend- 
ant upon  poverty  and  ill  health.  If  the  rule  were  otherwise,, 
a  person  in  poor  health,  or  without  means,  owning  land  near 
a  stream,  by  posting  a  notice,  making  a  survey,  or  otherwise,, 
might  establish  a  claim  to  the  water  of  the  stream  for  irriga- 
tion purposes,  and,  by  doing  such  work  as  his  health  or  means 
would  permit,  might  ultimately  divert  the  water,  and  acquire- 
a  right  thereto,  without  regard  to  the  rights  of  other  persons, 
equally  in  need  of  the  water,  who  might  be  ready  and  in 
a  position  to  put  it  to  immediate  use.  The  use  of  the  water 
might  thus  be  postponed  for  an  indefinite  period,  and  the 
first  appropriator  be  enabled  to  keep  others  from  using  the 
water  which  he  could  not  use  himself,  and  might  in  fact  never 
put  to  beneficial  use.94 

ssKeeney  v.  Carillo,  2  N.  Mex.  480;  Cole  v.  Logan,  24  Ore.  304,. 
33  Pac.  568. 

A  leading  case  in  this  connection  is  Ophir  Silver  Min.  Co.  v. 
Carpenter,  4  Nev.  534,  in  which  Lewis,  C.  J.,  in  holding  that  the 
illness  of  an  appropriator  of  water  was  not  to  be  taken  into  con- 
sideration in  determining  whether  the  work  of  diversion  was 
prosecuted  with  due  diligence,  said:  "Like  the  pecuniary  condi- 
tion of  a  person,  it  is  not  one  of  those  matters  incident  to  the  en- 
terprise, but  rather  to  the  person.  The  only  matters  in  cases  of 
this  kind  which  can  be  taken  into  consideration  are  such  as  would 
affect  any  person  who  might  be  engaged  in  the  same  undertaking, 
such  as  the  state  of  the  weather,  the  difficulty  of  obtaining  labor- 
ers, or  something  of  that  character.  It  would  be  a  most  dangerous 
doctrine  to  hold  that  ill  health  or  pecuniary  inability  of  a  claim- 
ant of  a  water  privilege  will  dispense  with  the  necessity  of 
actual  appropriation  within  a  reasonable  time,  or  the  diligence 
which  is  usually  required  in  the  prosecution  of  the  work  necessary 
for  the  purpose." 

s*  See  Cole  v.  Logan,  24  Ore.  304,  33  Pac.  568. 


§  42  LAW  OF  IRRIGATION.  [Ch.  3 

To  illustrate  these  principles:  Some  pioneers  of  limited 
means  and  facilities  posted  a  notice  of  appropriation  in  the 
early  summer,  and  shortly  afterwards  began  the  actual  work 
of  diversion.  By  the  next  spring  they  completed  the  first 
section  of  their  ditch,  two  miles  in  length,  and  prosecuted  the 
work  on  the  second  section  until  the  irrigating  season  of  the 
next  year,  when  the  work  was  discontinued  to  permit  the 
completed  portion  to  be  used.  In  the  fall,  work  was  re- 
sumed, and  the  whole  ditch,  nine  miles  in  length,  was  com- 
pleted and  in  use  the  next  spring,  or  a  little  less  than  three 
years  after  the  notice  was  posted.  It  was  held  that  the  work 
was  prosecuted  with  reasonable  diligence.95 

On  the  other  hand,  where  appropriators  began  the  diver- 
sion of  water,  discontinued  the  work  for  want  of  means  and 
time,  and  others,  within  the  next  year,  made  a  new  appropri- 
ation, and  completed  the  work  of  diversion,  it  was  held  that 
the  first  appropriators  had  failed  to  prosecute  the  work  with 
due  diligence.*8 

§    42.    Same— Modes  of  Diverting  and  Conducting  Water. 

Water  is  usually  diverted  from  the  stream  or  reservoir  by 
means  of  open  ditches  or  canals.  These  are  sometimes  lined 
with  wood,  stone  or  cement,  to  prevent  waste  of  water,  and 
in  some  cases  sections  of  the  conduit  may  be  constructed 
wholly  of  such  materials-.  In  various  parts  of  the  country 
pipes  are  employed  to  a  considerable  extent  to  prevent  loss  of 
water,  especially  at  points  where  it  is  difficult  to  maintain  an 
open  channel.  These  pipes  are  usually  made  of  wood  or 
sheet  iron,  or  frequently,  where  frosts  are  not  to  be  feared,  of 

»5  Nevada  Ditch  Co.  v.  Bennett,  30  Ore.  59,  45  Pac.  472. 
»6  Keeney  v.  Carillo,  2  N.  Mex.  480. 

(78) 


Ch.  3]  DOCTRINE    OF   APPROPRIATION.  §  43 

stoneware  or  cement.97  The  mode  of  diverting  and  conduct- 
ing the  water  is  wholly  immaterial,98  and  the  irrigator  may 
employ  any  means  best  suited  to  the  existing  physical  condi- 
tions, and  all  the  circumstances  of  the  case,  though  undoubt- 
edly he  will  be  required  to  employ  reasonably  economical 
means,  so  as  to  prevent  unnecessary  waste. 

When  ditches  and  flumes  are  the  usual  and  ordinary 
means  of  diverting  water,  parties  who  have  made  their  ap- 
propriations by  such  means  cannot  be  compelled  to  substitute 
iron  pipes,  though  they  will  be  required  to  prevent  unneces- 
sary waste  by  keeping  their  ditches  and  flumes  in  good  re- 
pair.99 

Where  the  water  cannot  be  made  to  flow  to  the  place  de- 
sired by  gravity  alone,  it  may  be  raised  from  the  stream  by 
means  of  pumps,  in  order  to  obtain  the  necessary  fall.100 

S    43.    Same— Use  of  Natural  Channel  or  Ravine  as  Part  of  Ditch. 

An  appropriator  may  use  any  dry  ravine,  gulch  or  natural 
hollow  or  depression  in  lands  as  a  part  of  his  ditch  for  con- 
ducting the  water  appropriated.101  So,  also,  he  may  turn 

97  See  Census  Report  on  Agriculture  by  Irrigation,  1890,  p.  19. 
»»  Thomas  v.  Guiraud,  6  Colo.  530. 

99  Barrows  v.  Fox,  98  Cal.  63,  32  Pac.  811. 

100  Earl  of  Norbury  v.  Kitchin,  7  Law  Times   (N.  S.)   685;   Char- 
nock  v.  Higuerra,  111  Cal.  473,  44  Pac.  171.     These  two  cases  in- 
volved the  right  of  a  riparian  proprietor'  to  raise  the  water  from 
a  stream  by  pumping,  but  there  can  be  no  difference  in  this  re- 
spect between  the  right  of  a  riparian  proprietor  and  an  appropria- 
tor.    The  use  of  pumping  machinery  for  this  purpose  is  common 
throughout  the  arid  region. 

101  Hoffman  v.  Stone,  7  Cal.  46;   Simmons  v.  Winters,  21  Ore.  35, 
27  Pac.  7. 

In  Hoffman  v.  Stone,  7  Cal.  46,  the  plaintiffs,  who  were  the  own- 
ers of  a  ditch  which  received  its  supply  of  water  from  a  gulch  dry 

(79) 


§  43  LAW  OF  IRRIGATION.  [Ch    3 

the  water  into  a  natural  watercourse, — either  the  lower  por- 
tion of  the  same  bed  or  channel  from  which  the  water  was 
taken,  or  the  channel  of  another  stream, — for  the  purpose  of 
conducting  it  to  the  place  of  use.102  By  so  turning  the  water 
into  a  natural  watercourse,  he  does  not  abandon  or  lose  his 
right  to  the  water,  but  may  take  out  of  the  stream  the  same 
quantity  of  water  that  he  has  turned  in.103  But  he  cannot  di- 
vert more  water  than  he  has  turned  into  the  stream,  to  the 
prejudice  of  other  appropriators  or  lower  riparian  proprie- 
tors;104 and  it  has  been  held  that  the  diversion  of  any  water 
by  him  may  be  enjoined  by  a  riparian  owner  below,  unless  he 
can  show  that  he  has  not  taken  from  the  stream  more  water 
than  he  has  led  to  it.105 

at  certain  seasons  of  the  year,  brought  an  action  to  restrain  the 
defendants  from  diverting  the  water  of  the  gulch.  It  appeared 
that  the  defendants  had  turned  water  from  one  of  their  ditches 
into  the  gulch,  and  used  it  to  conduct  the  water  to  another  ditch. 
The  water  diverted  by  both  plaintiffs  and  defendants  was  used 
for  mining  purposes.  It  was  held  the  plaintiffs  were  entitled 
to  no  relief;  that  the  water  turned  into  the  gulch  by  the  defend- 
ants was  not  abandoned  by  them,  and  that  they  had  a  right  to 
use  the  gulch  for  conducting  water,  so  long  as  they  did  not  in- 
fringe the  rights  of  prior  appropriators  therefrom  whose  appro- 
priation of  the  water  that  might  flow  in  the  gulch  did  not  give 
them  the  exclusive  use  of  the  bed. 

102  Hoffman  v.  Stone,  7  Cal.  46;  Wilcox  v.  Hausch,  64  Gal.  461,  3 
Pac.  108;  Paige  v.  Rocky  Ford  Canal  &  Irr.  Co.  83  Cal.  84,  21  Pac. 
1102,  23  Pac.  875.    See,  also,  Ellis  v.  Tone,  58  Cal.  289. 

103  Paige  v.  Rocky  Ford  Canal  &  Irr.  Co.,  83  Cal.  84,  21  Pac.  1102, 
23  Pac.  875.     See  Ellis  v.  Tone,  58  Cal.  289;   Schulz  v.  Sweeney,  19 
Nev.  359,  11  Pac.  253. 

The  following  mining  cases  sustain  the  text:     Hoffman  v.  Stone, 
7  Cal.  46;  Butte  Canal  &  Ditch  Co.  v.  Vaughan,  11  Cal.  143. 

104  Wilcox  v.  Hausch,   64   Cal.  461,  3   Pac.  108;    Paige  v.   Rocky 
Ford  Canal  &  Irr.  Co.,  83  Cal.  84,  21  Pac.  1102,  23  Pac.  875. 

105  Wilcox  v.  Hausch,  64  Cal.  461,  3  Pac.  108.     See  Butte  Canal 
&  Ditch  Co.  v.  Vaughan,  11  Cal.  143. 

(80) 


Ch.  3]  DOCTRINE    OF   APPROPRIATION.  §  44 

The  appropriates  who  desires  to  use  the  natural  channel  of 
a  stream  to  convey  water  may  clean  out  the  channel,  and  re- 
move obstructions  therefrom,106  but  he  has  no  right  to  make 
any  such  changes  in  the  natural  channel  as  will  injure  subse- 
quent appropriators  of  the  water.107  And  it  has  been  held 
that  where,  for  the  purpose  of  using  the  natural  channel  to 
convey  water  turned  into  it  by  him,  the  appropriator  removes 
obstructions  so  as  to  increase  the  natural  flow  of  the  stream  to 
the  land  of  a  lower  proprietor,  such  increase  inures  to  the 
benefit  of  the  lower  proprietor  having  a  right  to  the  natural 
flow  of  the  stream,  and  not  to  the  person  removing  the  ob- 
structions, and  this,  although  the  obstructions  had  cut  off  the 
entire  flow  of  the  stream,  except  during  high  water.108 

8    44.    Same— Use  of  Ditch  Constructed  by  or  Belonging  to  An- 
other. 

It  is  of  course  necessary  to  the  creation  and  preservation 
of  a  water  right  for  the  appropriator  to  provide  means  for 
the  continual  diversion  of  the  water  from  its  natural  channel, 
and  for  conducting  it  to  the  place  of  use,  and  he  cannot,  for 
this  purpose,  arbitrarily  seize  and  use  a  ditch  belonging  to  an- 
other.109 But  he  may  use  another's  ditch  for  this  purpose 
with  the  consent  of  the  owner.  A  ditch  owner  may  grant  to 
another  the  right  to  take  water  for  irrigation  through  or  from 
his  ditch,  and  to  construct  gates  and  dams  for  the  purpose  of 
diverting  it.110  The  fact  that  an  appropriation  is  made  by 

ice  Paige  v.  Rocky  Ford  Canal  &  Irr.  Co.  83  Cal.  84,  21  Pac.  1102, 
23  Pac.  875. 

107  Lobdell  v.  Simpson,  2  Nev.  274,  90  Am.  Dec.  537. 

los  Paige  v.  Rocky  Ford  Canal  &  Irr.  Co.  83  Cal.  84,  21  Pac.  1102, 
23  Pac.  875. 

io9McPhail  v.  Forney,  4  Wyo.  556,  35  Pac.  773. 

no  Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld  Irr.  Co.,  24 

(81) 


§   44  LAW  OF  IRRIGATION.  [Ch    3 

diverting  the  water  from  a  ditch  belonging  to  another  person, 
.and  not  by  taking  it  directly  from  the  natural  stream,  does 
not  affect  the  validity  of  the  appropriation.111 

In  Colorado,  the  right  to  use  the  ditch  of  another  in  certain 
•cases  is  secured  by  statute,  and  may  be  acquired  by  condem- 
nation in  a  proper  case.1-2  When,  for  the  purpose  of  using  an- 
other's ditch,  it  becomes  necessary  to  enlarge  or  improve  the 
ditch,  and  this  is  done  with  the  consent  or  permission  of  the 
•owner,  the  person  so  enlarging  or  improving  the  ditch  ac- 
quires thereby  a  vested  right  to  its  use,  which  cannot  be  re- 
voked or  denied  by  the  owner.113 

Where  a  ditch  is  constructed  on  government  land,  the  per- 
son constructing  it  becomes  the  owner  of  the  ditch,  and  re- 
mains such  as  long  as  he  uses  the  ditch  for  irrigating  pur- 
poses; but  when  he  ceases  to  use  the  ditch  for  transporting 
water,  the  title  to  it  reverts  to  the  government,  or  to  the 
person  who  may,  in  the  meantime,  have  acquired  the  govern- 
ment title  in  fee  to  the  land  upon  which  the  ditch  is  built. 
The  owner  of  the  ditch  has  only  a  qualified  title,  which  will 
be  defeated  by  his  failure  to  use  it  for  the  purpose  for  which 
it  was  constructed.114  If  one  who  desires  to  appropriate  the 
water  of  a  stream  on  the  public  land  finds  a  ditch  already  con- 
structed to  hand,  and  takes  peaceable  possession  thereof,  and 
.appropriates  the  water  by  means  of  the  ditch,  he  thereby  ac- 
quires a  right  to  the  water  thus  appropriated,  and  an  ease- 
Colo.  322,  51  Pac.  496;  North  Point  Consol.  Irr.  Co.  v.  Utah  &  S.  L. 
Canal  Co.  16  Utah,  246,  52  Pac.  168. 

in  Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld  Irr.  Co.,  24 
Colo.  322,  51  Pac.  496. 

112  Id.     See  Mills'  Ann.  St.  §  2263. 

us  Chicosa  Irr.  Ditch  Co.  v.  El  Moro  Ditch  Co.,  10  Colo.  App.  276, 
50  Pac.  731;  Lehi  Irr.  Co.  v.  Moyle,  4  Utah,  327,  9  Pac.  867. 

ii*Lehi  Irr.  Co.  v.  Moyle.  4  Utah,  327,  9  Pac.  867. 

(82) 


Ch.  3]  DOCTRINE   OF   APPROPRIATION.  §  45 

ment  or  right  of  way  over  the  public  land  traversed  by  the 
ditch,  good  against  all  the  world  except  the  true  owner,  or 
those  holding  under  or  through  him.  He  may  avail  himself 
of  the  medium  of  appropriation  thus  furnished,  without  be- 
ing liable  to  persons  having  no  interest  in  or  connection  with 
it ;  but  to  the  owner  of  the  ditch  thus  possessed  and  used  the 
appropriator  must  account  until  his  possession  and  use  ri- 
pen into  a  title  by  prescription  or  adverse  use.  His  right 
in  such  case  will  depend  for  priority,  as  against  other  appro- 
priators  of  water  from  the  same  stream,  upon  the  date  of  his 
possession  and  appropriation,  and  not  upon  the  date  of  the 
original  construction  of  the  ditch,  and  appropriation  by  some 
other  person,  under  whom  he  does  not  hold,  and  between 
whom  and  himself  there  is  no  priority  of  estate.  His  is  an 
entirely  new  and  independent  appropriation.115 

Where  the  original  owner  has  abandoned  the  ditch,  and  it 
has  gone  to  ruin,  a  later  appropriator  may  take  possession  of 
and  reconstruct  the  ditch  for  his  own  appropriation ;  and  if 
the  ditch,  as  reconstructed,  is  of  less  capacity  than  before,  the 
rights  of  the  new  owner  are  limited,  as  against  subsequent 
patentees  of  the  land  from  the  government,  to  the  capacity  of 
the  ditch  as  reconstructed,  and  he  cannot,  as  against  them, 
subsequently  enlarge  the  ditch  to  its  original  capacity.116 

§    45.    Same — Diversion  must  be  with  Intent  to  Use  Water  for  a 
Beneficial  Purpose. 

It  is  well  settled  that  a  mere  diversion  of  a  quantity  of  wa- 
ter from  a  stream  is  not  a  legal  appropriation  of  it.  The  in- 
tention of  the  claimant  is  a  most  important  factor  in  deter- 

ii->  Utt  v.  Prey,  106  Cal.  392,  39  Pac.  807. 
usjatunn  v.  O'Brien,  89  Cal.  57,  26  Pac.  635. 

(83) 


§  45  LAW  OF  IRRIGATION.  [Ch.  3 

mining  the  validity  of  his  appropriation.  The  water  must 
not  only  be  diverted  from  the  stream,  but  the  diversion  must 
be  for  some  useful  purpose,  existing  in  the  mind  of  the  ap- 
propriator.117  Thus,  one  who  has  diverted  more  water  than 
he  needs  for  the  purposes  for  which  the  diversion  was  made, 
and  permits  the  excess  to  run  to  waste  over  his  land,  without 
any  intention  of  applying  it  to  the  irrigation  of  the  land,  ac- 
quires no  right  to  such  excess.118  So,  also,  the  diversion  of 
water  for  drainage,  without  any  intention  to  apply  it  to  a 
beneficial  use,  is  not  a  valid  appropriation  thereof.119  More- 
over, the  privilege  of  diverting  the  water  of  natural  streams 
exists  only  for  uses  truly  beneficial,  and  not  for  purposes  of 
speculation.  Thus,  an  irrigation  company  will  not  be  per- 

117  Combs  v.  Agricultural  Ditch  Co.,  17  Colo.  146,  28  Pac.  966; 
Power  v.  Switzer,  21  Mont.  523,  55  Pac.  32;  Toohey  v.  Campbell 
(Mont,  1900)  60  Pac.  396. 

us  Power  v.  Switzer,  21  Mont.  523,  55  Pac.  32.  In  this  case, 
Hunt,  J.,  said:  "It  has  been  a  mistaken  idea  in  the  minds  of  many, 
not  familiar  with  the  controlling  principles  applicable  to  the  use 
of  water  in  arid  sections,  that  he  who  has  diverted,  or  'claimed' 
and  filed  a  claim  of,  water  for  any  number  of  given  inches,  has 
thereby  acquired  a  valid  right,  good  as  against  all  subsequent 
persons.  But,  as  the  settlement  of  the  country  has  advanced,  the 
great  value  of  the  use  of  water  has  become  more  and  more  ap- 
parent. Legislation  and  judicial  exposition  have  accordingly  pro- 
ceeded with  increasing  caution  to  restrict  appropriations  to  spheres 
of  usefulness  and  beneficial  purposes  As  a  result,  the  law,  crys- 
tallized in  statutory  form,  is  that  an  appropriation  of  a  right  to 
the  use  of  running  water  flowing  in  the  creeks  must  be  for  some 
useful  and  beneficial  purpose,  and  when  the  appropriator,  or  his 
successor  in  interest,  abandons  and  ceases  to  use  the  water  for 
such  purpose,  the  right  ceases." 

no  Thomas  v.  Guiraud,  6  Colo.  530.  See  the  mining  cases, 
Maeris  v.  Bicknell,  7  Cal.  261,  10  Cal.  217,  and  McKinney  v.  Smith. 
21  Cal.  374. 

(84) 


Ch.  3]  DOCTRINE    OF   APPROPRIATION.  §   46 

mitted  to  divert  water  without  limit  as  a  matter  of  specula- 
tion and  monopoly,  and  impose  upon  consumers  unreasona- 
ble conditions,  or  exact  from  them  exorbitant  rates  for  the 
use  of  the  water.120 

But  while  the  water  must  be  diverted  with  the  intent  to 
apply  it  to  some  beneficial  use,  it  is  not  necessary,  to  consti- 
tute a  valid  appropriation,  that  it  should  be  diverted  for  any 
particular  use,  and  the  use  to  which  the  water  is  put  may  be 
changed  without  the  appropriator  losing  his  right  thereto. 
That  is,  water  appropriated  for  one  purpose  may  be  after- 
wards used  for  another  purpose.121  Thus,  water  appropria- 
ted for  irrigation  may  be  used  for  other  purposes  by  one  who 
Succeeds  to  the  rights  of  the  appropriator.122 

§    46.    Same— Change  of  Point  or  Means  of  Diversion. 

As  has  been  stated  in  a  previous  section,  the  mode  by 
which  the  diversion  of  the  water  is  effected  is  immaterial,123 
and  it  necessarily  follows  that  any  change  in  the  mode  of  di- 
version, either  as  to  the  point  at  which  the  water  is  taken 
from  the  stream,  or  the  means  by  which  it  is  conveyed  to  the 
place  of  use,  will  not  affect  the  rights  of  the  appropriator. 
It  is  accordingly  held  that  a  person  who  has  made  a  lawful 
appropriation  of  water  for  the  purpose  of  irrigation  may 
change  the  place  of  diversion  without  losing  his  right  of  pri- 

120  Combs  v.  Agricultural   Ditch  Co.,  17   Colo.   146,  28  Pac.   966; 
New  Mercer  Ditch  Co.  v.  Armstrong,  21  Colo.  357. 

121  Davis  v.  Gale,  32  Cal.  27;  Ramelli  v.  Irish,  96  Cal.  214,  31  Pac. 
41;   Meagher  v.  Hardenbrook,  11  Mont.  385,  28  Pac.  451;   Power  v. 
Switzer,   21    Mont.   523,   55   Pac.   32;    Trambley   v.    Luterman,    6   N. 
M.  15,  27  Pac.  312. 

122  strickler  v.  City  of  Colorado  Springs,  16  Colo.  61,  26  Pac.  313; 
Drake  v.  Earhart,  2  Idaho,  716,  23  Pac.  541;   Springville  v.  Fullmer, 
7  Utah,  450,  27  Pac.  577. 

123  See  ante,  §  42. 

(85) 


§  47  LAW  OF  IRRIGATION.  [Ch.  3 

ority,  so  long  as  the  rights  of  other  persons  are  not  injurious- 
ly affected  by  such  change.124  So,  also,  he  may  change  his 
waterway  by  the  use  of  new  ditches,  abandoning  the  old,  with- 
out his  rights  being  in  any  way  affected  thereby.125  But  the 
right  of  the  appropriator  to  change  his  point  of  diversion  is 
subject  to  the  condition  that  the  rights  of  others  shall  not  be 
in  any  way  impaired  by  the  change,  and  such  change  will  not 
be  permitted  if  it  would  injuriously  affect  the  rights  of  other 
appropriators  or  landowners.126  The  quantity  of  water  to 
which  the  appropriator  is  entitled  will  be  neither  increased 
nor  diminished  by  a  change  of  the  point  of  diversion.127 

§    47.    Application  of  Water  to  Beneficial  Use— Water  must  be 
Used  Within  a  Reasonable  Time. 

The  last  step  necessary  to  effect  an  appropriation  of  wa- 
ter, and  by  which  the  appropriator's  right  is  perfected,  is  the 
actual  application  of  the  water  to  the  use  designed.  .  There 
must  not  only  be  an  actual  diversion,  made  with  the  intent  to 
apply  the  water  to  beneficial  use,  but  the  water  must  be  ac- 
tually applied  to  such  use  within  a  reasonable  time.128  "Ac- 

124  Ware  v.  Walker,  70  Cal.  591,  12  Pac.  475;  Ramelli  v.  Irish,  96 
Cal.  214,  31  Pac.  41;  Smith  v.  Corbit,  116  Cal.  587,  48  Pac.  725;  San 
Luis  Water  Co.  v.  Estrada,  117   Cal.  168,  48  Pac.  1075;    Sieber  v. 
Frink,  7  Colo.  148,  2  Pac.  901;  Strickler  v.  City  of  Colorado  Springs, 
16  Colo.  61,  26  Pac.  313;   Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac. 
278;   Nevada  Ditch  Co.  v.  Bennett,  30  Ore.  59,  45  Pac.  472;   Offleld 
v.  Ish  (Wash.,  1899)  57  Pac.  809.    See  statutes  in  Appendix. 

125  Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac.  278.     See  ante,  §  42. 
i26McGuire  v.   Brown,  106   Cal.   660,   39   Pac.   1060;    Hargrave  v. 

Cook,  108  Cal.  72,  41  Pac.  18;  Cole  v.  Logan,  24  Ore.  304,  33  Pac. 
568;  Hague  v.  Nephi  Irr.  Co.,  16  Utah,  421,  52  Pac.  765. 

127  Smith  v.  Corbit,  116  Cal.  587,  48  Pac.  725. 

12^  California:     Peregoy  v.  McKissick,  79  Cal.  572,  21  Pac.  967. 

Colorado:     Sieber  v.  Frink,  7  Colo.  148,  2  Pac.  901;   Wheeler  v. 

(86) 


(Jh.  3]  DOCTRINE  OF  APPROPRIATION.  §  47 

ual  use  for  a  beneficial  purpose  is  the  true  and  only  final 
test  touching  the  question  whether  a  party's  claim  has  ri- 
pened into  a  valid  appropriation.  There  can  be  no  con- 
structive appropriation,  nor  can  any  step  required  to  be  ta- 
ken throughout  the  whole  project  and  course  of  water  appro- 
priations be  constructively  accomplished.  It  is  the  actual 
physical  performance  of  every  essential  requisite,  from  the 
time  the  purpose  is  definitely  conceived,  down  to  the  ulti- 
mate use  of  the  water,  in  connection  with  the  advancement 
of  some  useful  and  beneficial  industry,  that  matures  and 
finally  accomplishes  the  appropriation.129 

What  constitutes  a  reasonable  time  within  which  the  water 
must  be  applied  to  beneficial  use  is  obviously  a  question  of 
fact  depending  upon  the  circumstances  of  each  particular 
case.130 

Northern  Colo.  Irr.  Co.  10  Colo.  582,  17  Pac.  487;  Platte  Water  Co. 
v.  Northern  Colo.  Irr.  Co.  12  Colo.  525,  21  Pac.  711;  Farmers'  High 
Line  Canal  &  Reservoir  Co.  v.  Southworth,  13  Colo.  Ill,  21  Pac. 
1028;  Combs  v.  Agricultural  Ditch  Co.,  17  Colo.  146,  28  Pac.  966; 
Ft.  Morgan  Land  &  Canal  Co.  v.  South  Platte  Ditch  Co.  18  Colo.  1, 
30  Pac.  1032;  Farmers'  Independent  Ditch  Co.  v.  Agricultural  Ditch 
Co.,  22  Colo.  513,  45  Pac.  444;  Cache  La  Poudre  Reservoir  Co.  v. 
Water  Supply  &  Storage  Co.,  25  Colo.  161,  53  Pac.  331;  Colorado 
Land  &  Water  Co.  v.  Rocky  Ford  Canal,  etc.,  Co.,  3  Colo.  App.  545, 
34  Pac.  580;  Beaver  Brook  Reservoir  &  Canal  Co.  v.  St.  Vrain  Res- 
ervoir &  Fish  Co.,  6  Colo.  App.  130,  40  Pac.  1066;  Taughenbaugh  v. 
Clark,  6  Colo.  App.  235,  40  Pac.  153. 

Montana:     Power  v.  Switzer,  21  Mont.  523,  55  Pac.  32. 

New  Mexico:     Millheiser  v.  Long,  (N.  M.,  1900)  61  Pac.  111. 

Oregon:  Hindman  v.  Rizor,  21  Ore.  112,  27  Pac.  13;  Cole  v. 
Logan,  24  Ore.  304,  33  Pac.  568;  Low  v.  Rizor,  25  Ore.  551,  37  Pac. 
82;  Nevada  Ditch  Co.  v.  Bennett,  30  Ore.  59,  45  Pac.  472. 

Utah:     Hague  v.  Nephi  Irr.  Co.,  16  Utah,  421,  52  Pac.  765. 

Washington:     Offield  v.  Ish   (Wash.,  1899)   57  Pac.  809. 

120  Wolverton,  J.,  in  Nevada  Ditch  Co.  v.  Bennett,  30  Ore.  59, 
45  Pac.  472. 

iso  Sieber  v.  Frink,  7  Colo.  148,  2  Pac.  901;  Beaver  Brook  Reser- 

(87) 


§  48  LAW  OF  IRRIGATION.  [Ch.  3 

An  appropriator  does  not  lose  his  right  to  the  water  di- 
verted by  a  delay  in  applying  the  water  to  beneficial  use, 
where  such  delay  is  due  to  accident, — as  by  the  breaking  of 
his  ditch  before  the  application  of  the  water.131 

§    48.    Same— Gradual  Application  Through  Successive  Seasons. 

Where  an  appropriator  claims  a  certain  quantity  of  water 
which  he  may  legally  appropriate  for  the  irrigation  of  his 
land,  it  is  not  necessary,  in  order  for  him  to  bring  himself 
within  the  rule  stated  in  the  preceding  section,  that  he  should 
apply  all  the  water  covered  by  his  appropriation  to  beneficial 
use  during  the  first  year  after  his  appropriation.  If  he  does 
not  need,  or  is  not  in  a  position  to  use,  all  the  water  during 
the  first  season,  he  may  apply  it  gradually  to  his  land  through 
successive  seasons,  increasing  the  quantity  used  year  after 
year,  as  he  adds  to  the  area  of  his  cultivated  ground,  until  he 
has  used  all  the  water  necessary  to  properly  irrigate  his  whole 
tract ;  provided,  of  course,  this  does  not  exceed  the  quantity 
contemplated  by  his  original  appropriation.132  This  does 
not  mean,  however,  that,  because  a  prior  appropriator  is  en- 
titled to  a  given  quantity  of  water  necessary  to  irrigate  the 
land  he  intends  to  cultivate,  he  can  suspend  his  improve- 
ments for  an  unreasonable  length  of  time,  and  then,  by  add- 
ing to  the  area  of  his  cultivated  land,  be  restored  to  his  orig- 

voir  &  Canal  Co.  v.  St.  Vrain  Reservoir  &  Fish  Co.,  6  Colo.  App.  130, 
40  Pac.  1066;  Taughenbaugh  v.  Clark,  6  Colo.  App.  235,  40  Pac.  153; 
Hindman  v.  Rizor,  21  Ore.  112,  27  Pac.  13;  Low  v.  Rizor,  25  Ore. 
551,  37  Pac.  82. 

isi  Wells  v.  Kreyenhagen,  117  Cal.  329,  49  Pac.  128. 

132  Senior  v.  Anderson,  115  Cal.  496,  47  Pac.  454;  Conant  v. 
Jones  (Idaho,  1893)  32  Pac.  250;  Kleinschmidt  v.  Greiser,  14  Mont. 
484,  37  Pac.  5;  Barnes  v.  Sabron,  10  Nev.  217;  Simmons  v.  Winters, 
(88) 


Ch.  3]  DOCTRINE  OF  APPROPRIATION.  §  48 

inal  intended  diversion  when  subsequent  appropriators  have 
acquired  rights  in  the  stream.  The  fact  that  he,  for  an  un- 
reasonable time,  delays  additional  cultivation,  will  be  con- 
strued into  an  abandonment  of  his  original  claim  to  divert  a 
sufficient  quantity  to  irrigate  his  whole  tract,  and  his  appro- 
priation, after  such  unreasonable  delay,  will  be  confined  to 
the  quantity  of  water  necessary  to  irrigate  the  land  he  has 
cultivated  within  a  reasonable  time  before  any  subsequent 
rights  had  accrued.  That  is  to  say,  the  right  to  increase  the 
amount  of  water  used  may  be  lost  by  unreasonable  delay  in 
•exercising  the  right.133  Only  reasonable  diligence,  however, 
is  required.  As  long  as  the  appropriator  does  not  abandon, 
but  continues,  in  good  faith,  the  application  of  the  water  to 
his  land  as  rapidly  as  his  means  and  circumstances  will  per- 
mit, he  will  be  held  to  be  within  the  limit  of  a  reasonable 
time.134 

To  illustrate  these  principles:     It  has  been  held  that  the 

21  Ore.  35,  27  Pac.  7;  Cole  v.  Logan,  24  Ore.  304,  33  Pac.  568;  Low 
v.  Rizor,  25  Ore.  551,  37  Pac.  82. 

•  issconkling  v.  Pacific  Imp.  Co.,  87  Cal.  296,  25  Pac.  399;  Senior 
v.  Anderson,  115  Cal.  496,  47  Pac.  454;  Hindman  v.  Rizor,  21  Ore. 
112,  27  Pac.  13;  Cole  v.  Logan,  24  Ore.  304,  33  Pac.  568;  Low  v. 
Rizor,  25  Ore.  551,  37  Pac.  82. 

One  who  appropriates  water  for  the  irrigation  of  his  lands,  and 
uses  a  portion  of  the  water  for  that  purpose,  but  fails  within  a 
reasonable  time  to  add  to  the  area  under  cultivation,  so  as  to  use 
the  water  to  the  extent  of  his  original  appropriation,  will  be  held 
to  have  abandoned  his  original  claim  to  divert  a  sufficient  quan- 
tity to  irrigate  his  entire  tract,  and,  as  against  subsequent  appro- 
priators, is  entitled  to  only  a  sufficient  amount  of  water  to  irri- 
gate the  land  in  cultivation.  Cole  v.  Logan,  24  Ore.  304,  33  Pac. 
568;  Low  v.  Rizor,  25  Ore.  551,  37  Pac.  82. 

134  Taughenbaugh  v.  Clark,  6  Colo.  App.  235,  40  Pac.  153;  Arnold 
v.  Passavant,  19  Mont.  575,  49  Pac.  400;  Moss  v.  Rose,  27  Ore.  595, 
41  Pac.  666. 

(89) 


§  49  LAW  OF  IRRIGATION.  [Ch.  3- 

fact  that  an  appropriate*!1,  who  had  180  acres  of  land  capable 
of  being  irrigated  from  his  ditches,  for  ten  years  cultivated 
only  45  acres,  was  not  sufficient,  in  view  of  the  circum- 
stances, to  show  lack  of  diligence  in  applying  the  water  to- 
use.135  So,  also,  a  delay  of  seven  years  has  been  held  not 
unreasonable.136  On  the  other  hand,  a  delay  of  fourteen137 
or  twenty138  years  has  been  held  unreasonable. 

It  should  be  noticed  that  the  fact  that  the  acreage  irrigated 
under  a  ditch  has  been  increased  does  not  necessarily  show 
that  the  amount  of  water  used  has  been  increased,  for  greater 
economy  in  use,  less  thorough  saturation  of  the  soil,  or  dif- 
ference in  soil  as  to  its  absorbing  quality,  may  account  for 
the  use  of  the  same  quantity  of  water  over  a  greater  area.139 

The  right  to  apply  gradually  the  water  claimed  does  not 
include  the  right  to  increase  the  extent  of  the  original  ap- 
propriation ;  that  is  to  say,  an  appropriator  who  claims  a  cer- 
tain quantity  of  water  for  the  irrigation  of  a  particular  tract 
of  land,  although  he  may  not  be  required  to  bring  all  of  such 
land  under  cultivation  at  once,  cannot,  as  against  subsequent 
appropriators,  increase  the  amount  of  his  appropriation  by 
applying  water  to  other  land,  not  contemplated  in  the  orig- 
inal appropriation.140 

$    49.    Same  -Methods  of  Applying  Water. 

The  methods  of  applying  water  to  the  soil  vary  with  the 

135  Arnold  v.  Passavant,  19  Mont.  575,  49  Pac.  400. 

136  Moss  v.  Rose,  27  Ore.  595,  41  Pac.  666. 
isiHindman  v.  Rizor,  21  Ore.  112,  27  Pac.  13. 
iss  LOW  v.  Rizor,  25  Ore.  551,  37  Pac.  82. 

139  Cache  La  Poudre  Irr.  Co.  v.  Larimer  &  Weld  Reservoir  Co., 
25  Colo.  144,  53  Pac.  318. 
1*0  See  post,  §  59. 

(90) 


Ch.  3]  DOCTRINE  OF  APPROPRIATION.  §49 

character  of  the  soil  and  crop,  the  quantity  of  water  avail- 
able, the  slope  of  the  ground,  and  like  considerations.  The 
water  may  be  distributed,  as  is  usually  done  in  the  case  of 
hay  crops,  such  as  alfalfa,  growing  on  nearly  level  ground, 
by  cutting  the  side  of  the  distributing  ditch  constructed  along 
the  highest  parts  of  the  field,  either  by  making  temporary 
openings  with  a  shovel  or  hoe,  or  by  permanent  gates,  and  let- 
ting the  water  flow  in  all  directions  over  the  surface.  This 
is  evidently  the  simplest  mode  of  distribution  from  a  ditch. 
Other  methods,  varying  in  complexity  up  to  elaborate  sys- 
tems of  distribution  by  means  of  pipes,  are  employed.141 
These  are  matters  of  interest  to  the  practical  irrigator,  rather 
than  to  the  lawyer. , 

The  true  test  of  appropriation  of  water,  in  its  legal  aspect, 
is  the  successful  application  of  the  water  to  the  beneficial  use 
designed ;  the  method  of  diverting  or  carrying  it,  or  of  mak- 
ing the  application  being  wholly  immaterial.  It  is  not  even 
necessary  that  ditches  be  used.  Thus,  if  a  dam  or  other  con- 
trivance will  suffice  to  turn  the  water  from  the  stream,  and 
moisten  the  lands  sought  to  be  cultivated,  this  is  sufficient,  al- 
though no  ditch  be  needed  or  constructed.142  Moreover,  it 
seems  that  if  land  be  rendered  productive  by  the  natural  over- 
flow of  the  water  thereon,  without  the  aid  of  any  appliances 
whatever,  the  cultivation  of  the  land  by  means  of  the  water 
so  naturally  moistening  it  constitutes  a  valid  appropriation 
of  such  water,  or  of  so  much  thereof  as  is  reasonably  neces- 
sary for  such  use.143 

1*1  See  Census  Report  on  Agriculture  by  Irrigation,  1890,  p.  20. 

142  Thomas  v.  Guiraud,  6  Colo.  530. 

143  Opinion  of  Helm,  J.,  in  Thomas  v.  Guiraud,  6  Colo.  530. 
See,  also,  ante,  §  1. 

(91) 


§  50  LAW  OF  IRRIGATION.  [Ch.  3 

§    50.    Same— Place  of  Use. 

In  our  examination  of  the  doctrine  of  riparian  rights,  we 
found  that  the  riparian  proprietor  may  use  the  water  of  a 
stream  for  irrigation  only  on  riparian  lands.  In  this  respect 
there  is  a  wide  difference  between  the  right  of  the  appro- 
priator  and  that  of  the  riparian  owner.  The  right  to  water 
acquired  by  priority  of  appropriation  is  not  in  any  way  de- 
pendent on  the  locus  of  its  application  to  the  beneficial  use 
designed.144  The  water  may  be  used  either  in  the  valley  of 
the  stream  from  which  it  is  taken,  or  it  may  be  carried  over 
an  intervening  ridge  to  land  lying  in  the  valley  of  another 
stream,  and  there  used.145  The  water  may  be  diverted  to 
the  exclusion  of  a  riparian  owner,  as  will  be  necessary  where 
the  lands  to  be  irrigated  therewith  are  not  located  on  the 
banks,  or  in  the  neighborhood  of  the  stream.146 

Not  only  is  it  immaterial  where  the  appropriator  uses  the 
water  in  the  first  instance,  but  he  may  afterwards  change 
the  place  of  use  without  losing  his  right  to  the  water,  provided 
the  rights  of  other  persons  are  not  injuriously  affected  by 
such  change.147  But  he  cannot  make  such  change  so  as  to 
deprive  subsequent  appropriators  of  their  rights.148 

Where  an  appropriator,  by  reason  of  a  mistake  in  the  lo- 
cation of  the  boundaries  of  his  land,  uses  a  portion  of  the 

"4  Coffin  v.  Left  Hand  Ditch  Co.,  6  Colo.  443;  Offield  v.  Ish 
(Wash.,  1899)  57  Pac.  809. 

145  Hammond  v.  Rose,  11  Colo.  524,  19  Pac.  466;  Oppenlander  v. 
Left  Hand  Ditch  Co.,  18  Colo.  142,  31  Pac.  854;  Coffin  v.  Left  Hand 
Ditch  Co.,  6  Colo.  443;  Thomas  v.  Guiraud,  6  Colo.  530. 

i4o  Hammond  v.  Rose,  11  Colo.  524,  19  Pac.  466. 

147  Davis  v.  Gale,  32  Cal.  27;  Ramelli  v.  Irish,  96  Cal.  214,  31  Pac. 
41;   Knowles  v.  Clear  Creek  P.  R.  Mill  &  Ditch  Co.,  18  Colo.  209, 
32  Pac.  279. 

148  Gassert  v.  Noyes,  18  Mont.  216,  44  Pac.  959. 
(92) 


Ch.  3]  DOCTRINE  OF  APPROPRIATION.  §   51 

water  diverted  by  him  on  land  not  belonging  ,to  him,  he 
does  not,  by  such  mistake,  lose  his  right  to  this  portion  of  the 
water,  and  one  who  subsequently  acquires  title  to  the  land 
on  which  it  was  used  has  no  right  thereto.149 

§    51.    The  Doctrine  of  Relation. 

The  rights  of  an  appropriator  of  water  do  not  become  ab- 
solute until  the  appropriation  is  completed  by  the  actual  ap- 
plication of  the  water  to  the  use  designed ;  but  where  he  has 
pursued  the  work  of  appropriation  with  due  diligence,  and 
brought  it  to  completion  within  a  reasonable  time,  as  against 
other  appropriators,  his  rights  will  relate  back  to  the  time 
of  the  commencement  of  the  work.150  By  the  terms  of  the- 
statutes  requiring  the  posting  of  a  notice  of  appropriation,, 
the  rights  thus  acquired  relate  back  to  the  time  of  posting  the- 
notice.151  And  inasmuch  as  the  principle  underlying  the  de- 
cisions on  the  subject  is  that  the  right  of  the  appropriator 
shall,  in  a  proper  case,  relate  back  to  the  time  when  the  first 
step  was  taken  to  secure  it,  it  seems  that  such  right  will  relate- 
back  to  the  time  of  posting  a  notice,  where  this  is  required 
by  local  custom,  although  there  is  no  statutory  provision  on 
the  subject.152  One  who  seeks  to  avail  himself  of  the  doc- 

i«  Mahoney  v.   Neiswanger   (Idaho,  1899)    59   Pac.  561. 

isoQsgood  v.  El  Dorado  Water  &  Deep  Gravel  Min.  Co.,  56  Cal. 
571;  Seiber  v.  Frink,  7  Colo.  148,  2  Pac.  901;  Water  Supply  &  Stor- 
age Co.  v.  Larimer  &  Weld  Irr.  Co.,  24  Colo.  322,  51  Pac.  496;  Colo- 
rado Land  &  Water  Co.  v.  Rocky  Ford  Canal,  etc.,  Co.,  3  Colo.  App. 
545,  34  Pac.  580;  Ophir  Silver  Min.  Co.  v.  Carpenter,  4  Nev.  544; 
Irwin  v.  Strait,  18  Nev.  436,  4  Pac.  1215;  Keeney  v.  Carillo,  2  N.  M. 
480;  Cole  v.  Logan,  24  Ore.  304,  33  Pac.  568;  Nevada  Ditch  Co.  v. 
Bennett,  30  Ore.  59,  45  Pac.  472. 

i5i  Consult  statutes  in  Appendix.  Murray  v.  Tingley,  20  Mont. 
260,  50  Pac.  723. 

132  See  Nevada  Ditch  Co.  v.  Bennett,  30  Ore.  59,  45  Pac.  472. 

(93) 


§  52  LAW  OF  IRRIGATION.  [Ch.  3 

trine  of  relation  back  under  the  statutory  provisions  as  to  no- 
tice can  do  so  only  by  a  strict  compliance  with  the  statutory 
requirements.153 

VI.     THE  RIGHT  ACQUIRED  BY  APPROPRIATION. 

§    52.    The  Doctrine  of  Priority. 

Having  discussed  the  several  steps  by  which  a  water  right 
may  be  acquired  by  appropriation,  we  will  now  consider  the 
nature  and  extent  of  the  right  so  acquired.  In  this  connec- 
tion we  will  first  examine  the  doctrine  of  priority. 

It  is  the  fundamental  principle  of  the  doctrine  of  appro- 
priation that,  among  several  appropriators  of  water,  he 
whose  appropriation  is  first  in  time  acquires,  as  against  sub- 
sequent appropriators,  a  better  right  to  the  water  'appro- 
priated to  the  extent  of  such  appropriation;  or,  in  other 
words,  priority  of  appropriation  confers  superiority  of  right 
to  the  water  appropriated.  With  one  or  two  exceptions,  it 
is  expressly  so  provided  by  the  constitutions  or  statutes  of 
all  the  arid  states,154  and  in  these  states,  as  well  as  in  those  in 
which  there  is  no  express  provision  on  the  subject,  this  doc- 
trine of  priority  has  been  repeatedly  upheld  by  the  courts.155 

153  Murray  v.  Tingley,  20  Mont.  260,  50  Pac.  723;  Umatilla  Irr. 
Co.  v.  Umatilla  Imp.  Co.,  22  Ore.  366,  30  Pac.  30. 

is*  Consult  statutes,  etc.,  in  Appendix. 

iss  United  States:     Basey  v.  Gallagher,  20  Wall.  (U.  S.)  670. 

California:  Stein  Canal  Co.  v.  Kern  Island  Irr.  Canal  Co.,  53  Gal. 
563;  Osgood  v.  El  Dorado  Water  &  Deep  Gravel  Min.  Co.,  56  Cal. 
571;  Hines  v.  Johnson,  61  Cal.  259;  Brown  v.  Mullin,  65  Cal.  89,  3 
Pac.  99.  • 

Colorado:  Schilling  v.  Rominger,  4  Colo.  100;  Coffin  v.  Left 
Hand  Ditch  Co.,  6  Colo.  443;  Sieber  v.  Frink,  7  Colo.  148,  2  Pac. 
901;  Rominger  v.  Squires,  9  Colo.  327,  12  Pac.  213;  Wheeler  v. 
Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487,  3  Am.  St.  Rep. 
(94) 


Ch.  3]  DOCTRINE  OF  APPROPRIATION.  §   53 

As  has  been  seen  in  a  previous  section,  the  doctrine  of  appro- 
priation, and  so  the  doctrine  of  priority,  although  recognized 
and  confirmed  by  constitutional  provisions,  or  by  statutes, 
state  and  federal,  existed  prior  to  and  independently  of  these 
provisions,  and  had  its  origin  in  the  absolute  necessity  for 
irrigation  in  the  arid  region.  The  right  to  water  by  priority 
of  appropriation,  and  the  duty  of  the  state  and  national  gov- 
ernment to  protect  such  right,  existed  prior  to  any  legisla- 
tion on  the  subject.156 

§    53.    Priority  between  Appropriators  Using  Water  for  Different 
Purposes. 

We  have  already  seen  that  the  uses  to  which  water  may  be 
put  have  been  sometimes  classified  as  ordinary  or  natural, 
and  extraordinary  or  artificial,  the  use  for  irrigation  being 
usually  considered  an  extraordinary  or  artificial  use.157  This 
classification  has  not  been  employed  except  in  connection  with 

604;  Hammond  v.  Rose,  11  Colo.  524,  19  Pac.  466,  7  Am.  St.  Rep. 
258;  Burnham  v.  Freeman,  11  Colo.  601,  19  Pac.  761;  Farmers' 
High  Line  Canal  &  Reservoir  Co.  v.  Southworth,  13  Colo.  Ill,  21  Pac. 
1028;  Strickler  v.  City  of  Colorado  Springs,  16  Colo.  61,  26  Pac.  313; 
Bloom  v.  West,  3  Colo.  App.  212,  32  Pac.  846. 

Idaho:  Hillman  v.  Hardwick,  2  Idaho,  983,  28  Pac.  438;  Drake 
v.  Earhart,  2  Idaho,  716,  23  Pac.  541;  Kirk  v.  Bartholomew,  2  Idaho, 
1087.  29  Pac.  40;^Geertson  v.  Barrack,  2  Idaho,  1066,  29  Pac.  42; 
Dunniway  v.  Lawson  (Idaho,  1898)  51  Pac.  1032. 

Nevada:  Lobdell  v.  Simpson,  2  Nev.  274,  90  Am.  Dec.  537; 
Barnes  v.  Sabron,  10  Nev.  217 ;  Strait  v.  Brown,  16  Nev.  317,  40  Am. 
Rep.  497;  Jones  v.  Adams,  19  Nev.  78,  6  Pac.  442. 

New  Mexico:  Keeney  v.  Carillo,  2  N.  M.  480;  Millheiser  v.  Long 
(N.  M.,  1900)  61  Pac.  111. 

Oregon:     Kaler  v.  Campbell,  13  Ore.  596,  11  Pac.  301. 

i">e  See  ante,  §  23.  Coffin  v.  Left  Hand  Ditch  Co.  6  Colo.  442; 
Thomas  v.  Guiraud,  6  Colo.  530. 

i"  Ante,  §  3. 

(95) 


§  53  LAW  OF  IRRIGATION.  [Ch.  3 

the  doctrine  of  riparian  rights.  The  statutes  authorizing  the 
acquisition  of  water  rights  by  appropriation  declare  in  gen- 
eral terms  that  the  right  to  the  use  of  water  may  be  acquired 
by  appropriation,  and  that  the  appropriator  who  is  first  in 
time  is  first  in  right.  Under  these  statutes,  the  rights  of  the 
appropriator  depend  solely  upon  the  time  of  his  appropria- 
tion, and,  with  the  exception  presently  to  be  noticed,  no  su- 
periority of  right  can  be  claimed  on  the  ground  that  the  water 
in  question  is  to  be  used  for  one  purpose,  rather  than  an- 
other. 

In  Colorado  and  Idaho,  by  the  state  constitutions,  the 
priority  rule  as  above  stated  is  made  to  apply  as  between  those 
using  the  water  for  the  same  purpose;  but,  in  case  of  de- 
ficiency, those  desiring  to  use  the  water  for  domestic  pur- 
poses are  given  the  preference  over  those  claiming  it  for  any 
other  purpose,  while  agricultural  uses  are  preferred  to  the 
use  of  the  water  for  manufacturing  purposes.158  It  has  been 
several  times  held  in  Colorado  that  this  provision  is  pros- 
pective in  its  operation,  and  does  not  apply  to  water  rights 
acquired  prior  to  the  adoption  of  the  constitution  in  1876. 159 
The  domestic  use  protected  by  the  constitution,  as  defined  by 
the  Colorado  supreme  court,  is  such  use  as  the  riparian  owner 
has  at  common  law  to  take  water  for  himself,  his  family, 
or  his  stock,  and  the  like;  and  the  right  to  use  the  water 
for  such  purpose  must  be  exercised  in  connection  with  the 
riparian  ownership.  By  recognizing  a  preference  in  those 
using  the  water  for  domestic  purposes  over  those  using  it 
for  any  other  purpose,  it  is  not  intended  to  authorize  a  di- 

iss  Const.  Colo.  art.  16,  §  6;  Const.  Idaho,  art.  15,  §  3;   Schwab  v. 
Beam,  86  Fed.  41. 

159  Strickler  v.  City  of  Colorado  Springs,  16  Colo.  61,  26  Pac.  313; 


Ch.  3]  DOCTRINE  OF  APPROPRIATION.  §  54 

version  of  water  for  domestic  use  from  the  public  streams  of 
the  state  by  means  of  pipe  lines  or  canals.160  Nor  can  such 
right  to  preference  be  conveyed  separately  from  the  land  of 
the  riparian  owner.161 

In  this  connection,  it  may  be  proper  to  note  a  recent  de-- 
cision  in  the  United  States  circuit  court  for  the  district  of 
Colorado,  in  which  it  was  held  that  nothing  in  the  constitu- 
tion of  that  state,  or  in  the  law  relating  to  irrigation,  in  any 
way  modifies  or  changes  the  rules  of  the  common  law  in  re- 
spect to  the  diversion  of  streams  for  manufacturing,  mining 
or  mechanical  purposes.  In  Colorado,  as  elsewhere  in  the 
United  States,  the  law  is  now,  as  it  has  been  at  all  times,  thatr 
for  such  purposes,  each  riparian  owner  may  use  the  waters 
of  running  streams  on  his  own  premises,  allowing  such  waters- 
to  go  down  to  subsequent  owners  in  their  natural  channel.162 

§    54.    Quantity  of  Water  That  may  be  Claimed— General  Princi- 
ples. 

Where  there  is  but  one  appropriator  from  a  stream,  or 
where  the  stream  is  large  enough  to  easily  supply  the  needs 
of  all  who  may  wish  to  use  the  water,  the  quantity  of  water 
taken  by  each  appropriator  is  a  matter  of  small  consequence ; 
but  where  the  stream  is  small,  or  the  number  of  appropriators 
large,  so  that  the  water  supply  may  become  insufficient  for 

Colorado  Milling  &  Elevator  Co.  v.  Larimer  &  Weld  Irr.  Co.  (Colo. 
Sup.,  1899)  56  Pac.  185;  Armstrong  v.  Larimer  County  Ditch  Co., 
1  Colo.  App.  49,  27  Pac.  235. 

IBO  Montrose  Canal  Co.  v.  Loutsenhizer  Ditch  Co.,  23  Colo.  233, 
48  Pac.  532;  Broadmoor  Dairy  &  Live  Stock  Co.  v.  Brookside  Water 
&  Imp.  Co.,  24  Colo.  541,  52  Pac.  792. 

i«i  Broadmoor  Dairy  &  Live  Stock  Co.  v.  Brookside  Water  &. 
Imp.  Co.,  supra. 

IBS  Schwab  v.  Beam,  86  Fed.  41. 

(97) 


§  54  LAW  OF  IRRIGATION.  [Ch.  3 

all,  it  becomes  of  prime  importance  that  each,  appropriator 
should  receive  all  the  water  to  which  he  is  entitled,  and  that 
he  should  receive  no  more  than  this  quantity.  Just  how  much 
this  may  be  in  a  particular  case  may  be  sometimes  difficult  to 
determine,  on  account  of  conflict  of  testimony  as  to  matters 
of  fact,  but  the  controlling  principles  are  extremely  simple. 
Briefly  stated,  the  law  is  this:  Each  appropriator  is  en- 
titled to  all  the  water  not  already  appropriated  by  others, 
and  subject  to  appropriation,  which  he  has  actually  diverted 
from  the  stream,  and  has  applied  or  will  apply  to  beneficial 
use  within  a  reasonable  time,  and  no  more.  The  extent  of 
his  right  is  measured  by  the  extent  of  his  lawful  appropria- 
tion. More  specifically,  a  prior  appropriator  is  entitled  to  a 
sufficient  quantity  of  water,  up  to  the  extent  of  his  appro- 
priation, to  irrigate  all  his  lands  for  the  benefit  of  which  the 
appropriation  was  made.163  He  cannot  claim  more  than  he 
has  actually  appropriated,  that  is  to  say,  more  than  he  has 
actually  diverted,  or  has  provided  means  to  divert,  with  a 
present  intention  to  divert  and  use,164  nor  more  than  he  ac- 
tually needs  for  the  irrigation  of  his  lands,  and  is  or  may  be 
used  for  that  purpose.165  But  he  may  divert  from  the  stream 


v.  Hardwick,  2  Idaho,  983,  28  Pac.  438;  Roeder  v. 
Stein,  23  Nev.  92,  42  Pac.  867;  Cole  v.  Logan,  24  Ore.  304,  33  Pac. 
568;  Bowman  v.  Bowman  (Ore.,  1899)  57  Pac.  546. 

ie*Greer  v.  Heiser,  16  Colo.  306,  26  Pac.  770;  Nichols  v.  Mcln- 
tosh,  19  Colo.  22,  34  Pac.  278;  Low  v.  Schaffer,  24  Ore.  239,  33  Pac. 
678;  Salina  Creek  Irr.  Co.  v.  Salina  Stock  Co.,  7  Utah,  456,  27  Pac. 
.578;  Becker  v.  Marble  Creek  Irr.  Co.,  15  Utah,  225,  49  Pac.  892,  1119. 

iG3  Arizona:     Clough  v.  Wing  (Ariz.,  1888)  17  Pac.  453. 

California:  Barrows  v.  Fox,  98  Cal.  63,  32  Pac.  811;  Riverside 
Water  Co.  v.  Sargent,  112  Cal.  230,  44  Pac.  560;  Senior  v.  Anderson, 
115  Cal.  496,  47  Pac.  454;  Smith  v.  Hawkins,  120  Cal.  86,  52  Pac.  139. 
:See  Riverside  Land  &  Irr.  Co.  v.  Jansen,  66  Cal.  300,  5  Pac.  486. 

Colorado:     Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac.  278;   New 

(98) 


Ch.  3]  DOCTRINE  OF  APPROPRIATION.  §  55 

water  enough  to  yield,  at  the  place  of  use,  the  quantity  re- 
quired, after  the  loss  by  absorption  and  evaporation  of  so 
much  thereof  as  is  necessarily  so  lost,  in  a  ditch  or  flume  well 
constructed,  and  kept  in  good  condition.166  Conversely,  it 
seems  that  he  cannot  claim  more  than  this  quantity,  as 
against  other  persons  who  may  desire  to  use  the  water,  al- 
though, by  reason  of  the  insufficiency  of  his  means  of  diver- 
sion and  conveyance  of  the  water,  he  would  actually  receive, 
at  the  place  of  use,  only  a  quantity  sufficient  for  the  irriga- 
tion of  his  land.  His  right  is  limited  to  the  quantity  of  wa- 
ter necessary  for  the  proper  irrigation  of  his  land,  when  di- 
verted and  conveyed  to  the  place  of  use  by  reasonably  eco- 
nomical means,  properly  constructed,  and  kept  in  repair.167 

§    55.    Same— How  Far  Determined  by  Capacity  of  Ditch. 

The  right  of  a  prior  appropriator  is  measured,  as  already 
stated,  by  his  necessity,  and  not  by  the  capacity  of  the  ditch 
or  the  quantity  of  water  diverted,  where  the  ditch  carries 

Mercer  Ditch  Co.  v.  Armstrong,  21  Colo.  357,  40  Pac.  989;  Colo- 
rado Milling  &  Elevator  Co.  v.  Larimer  &  Weld  Irr.  Co.  (Colo.  Sup., 
1899)  56  Pac.  185;  Church  v.  Stillwell,  12  Colo.  App.  43,  54  Pac.  395. 

Nevada:  Barnes  v.  Sabron,  10  Nev.  217;  Simpson  v.  Williams, 
18  Nev.  432,  4  Pac.  1213;  Roeder  v.  Stein,  23  Nev.  92,  42  Pac.  867. 

New  Mexico:     Millheiser  v.  Long  (N.  M.,  1900)  61  Pac.  111. 

Oregon:  Simmons  v.  Winters,  21  Ore.  35,  27  Pac.  7;  Hindman  v. 
Rizor,  21  Ore.  112,  27  Pac.  13;  Bowman  v.  Bowman  (Ore.,  1899)  57 
Pac.  546. 

Utah:  Lehi  Irr.  Co.  v.  Moyle,  4  Utah  327,  9  Pac.  867;  Becker  v. 
Marble  Creek  Irr.  Co.,  15  Utah,  225,  49  Pac.  892,  1119;  Hague  v. 
Nephi  Irr.  Co.,  16  Utah,  421,  52  Pac.  765;  Manning  v.  Fife,  17  Utah, 
232,  54  Pac.  111. 

iseNatoma  Water  &  Min.  Co.  v.  Hancock,  101  Cal.  42,  31  Pac.  112, 
35  Pac.  334,  citing  Barrows  v.  Fox,  98  Cal.  63,  32  Pac.  811. 

i6-  See  cases  cited  in  note  immediately  preceding. 

(99) 


§  56  LAW  OF  IRRIGATION.  [Ch.  3 

more  water  than  the  needs  of  the  appropriator  require.168 
The  capacity  of  the  ditch  has  no  bearing  on  the  question  ex- 
cept in  so  far  as  the  maximum  quantity  of  water  which  the 
appropriator  may  claim  is  necessarily  limited  to  the  quantity 
actually  diverted,  which,  of  course,  depends  upon  the  carry- 
ing capacity  of  the  ditch,  and,  as  this  can  never  be  greater 
than  its  capacity  at  its  smallest  point,  the  irrigator  can  ac- 
quire the  right  to  no  more  water  than  will  flow  through  his 
ditch  at  its  point  of  least  capacity.169 

§    56.    Same— Water  must  be  Used  in  a  Reasonable  Manner. 

The  rule  that  a  prior  appropriator  is  entitled  to  a  quantity 
of  water  sufficient  for  the  irrigation  of  his  land  does  not 
mean  that  he  may  use  the  water  for  this  purpose  wastefully, 
or  without  any  regard  to  the  needs  of  other  landowners.  He 
is  bound  to  use  the  water  in  a  reasonable  manner,  and  is  en- 
titled, as  against  other  persons,  to  only  so  much  water  as  may 
be  reasonably  necessary  for  his  purposes.170  It  is  his  duty 

les  Bowman  v.  Bowman  (Ore.,  1899)  57  Pac.  546.  See,  also,  Mill- 
heiser  v.  Long  (N.  M.,  1900)  61  Pac.  111. 

iss  Smith  y.  Hawkins,  120  Cal.  86,  52  Pac.  139.  In  Barnes  v. 
Sabron,  10  Nev.  217,  the  court  said:  "If  the  capacity  of  his  [the 
plaintiff's]  ditches  is  greater  than  is  necessary  to  irrigate  his  farm- 
ing land,  he  must  be  restricted  to  the  quantity  needed  for  the  pur- 
poses of  irrigation,  for  watering  his  stock,  and  for  domestic  purposes. 
If,  however,  the  capacity  of  his  ditches  is  not  more  than  sufficient 
for  those  purposes,  then,  under  all  the  facts  of  this  case,  no  change 
having  been  made  in  either  of  plaintiff's  ditches  since  they  were 
constructed,  and  no  question  of  the  right  of  enlargement  being 
involved,  he  must  be  restricted  to  the  capacity  of  his  ditches  at 
their  smallest  point, — that  is,  at  the  point  where  the  least  water 
can  be  carried  through  them."  See,  also,  Dougherty  v.  Haggin,  61 
Cal.  305;  Carron  v.  Wood,  10  Mont.  500,  26  Pac.  388;  and  the  mining 
cases,  Caruthers  v.  Pemberton,  1  Mont.  Ill;  Ophir  Silver  Min.  Co. 
v.  Carpenter,  6  Nev.  393. 

ITO  Wiggins  v.  Muscupiabe  Land  &  Water  Co.,  113  Cal.  182,  45 
(100) 


Ch.  3]  DOCTRINE  OF  APPROPRIATION.  §  57 

to  use  the  water  with  due  regard  to  the  needs  of  other  per- 
sons, and,  where  the  water  is  scarce,  he  should  employ  proper 
means  to  convey  it  in  an  economical  manner  to  the  place  of 
application,  to  use  it  only  at  such  times  and  in  such  quanti- 
ties as  may  be  necessary,  and,  when  other  persons  require  the 
water,  to  stop  its  flow  at  such  times  as  it  may  not  be  needed 
for  his  own  use.171  What  constitutes  a  reasonable  use  will 
depend  upon  the  circumstances  of  .each  particular  case,  such 
as  the  size  of  the  stream,  the  number  of  consumers,  the  char- 
acter of  the  soil,  the  nature  of  the  crops  planted,  and  other 
like  considerations.172 

§    57.    Same— Appropriation  of  Entire  Flow  of  Stream. 

We  have  seen  that  the  rights  of  an  appropriator  depend 
solely  upon  the  fact  of  prior  appropriation,  and  that  an  irri- 
gator  may  use  all  the  water,  not  already  appropriated  by 
others,  that  may  be  reasonably  necessary  for  the  irrigation  of 
his  land.  Except  as  against  prior  appropriators,  the  rights  of 
an  appropriator,  unlike  those  depending  upon  the  fact  of 
riparian  ownership,  are  measured  solely  by  his  own  needs 
and  actual  appropriation,  and  he  is  not  concerned  with  the 
effect  of  the  satisfaction  of  his  own  wants  on  other  persons. 
It  follows  from  these  principles,  that  a  prior  appropriator 
may  use  the  entire  flow  of  a  stream  for  irrigation,  provided 

Pac.  160;  Barnes  v.  Sabron,  10  Nev.  217;  Jones  v.  Adams,  19  Nev. 
78,  6  Pac.  442;  Roeder  v.  Stein,  23  Nev.  92,  42  Pac.  867;  Low  v. 
Schaffer,  24  Ore.  239,  33  Pac.  678. 

171  Shot-well  v.  Dodge,  8  Wash.  337,  36  Pac.  254. 

172  Heilbron  v.  76  Land  &  Water  Co.,  80  Cal.  189,  22  Pac.  62;  Wig- 
gins v.  Muscupiabe  Land  &  Water  Co.,  113  Cal.  182,  45  Pac.  160; 
Barnes  v.  Sabron,  10  Nev.  217;  Low  v.  Schaffer,  24  Ore.  239,  33  Pac. 
678. 

(101) 


§  58  LAW  OF  IRRIGATION.  [Ch.  3 

this  is  necessary  for  the  proper  irrigation  of  his  land.173 
Where  the  doctrine  of  riparian  rights  obtains,  it  is  held 
that  one  who  has  made  an  appropriation  on  the  public  do- 
main does  not,  by  becoming  a  riparian  owner,  lose  his  right 
to  make  a  further  appropriation  of  the  water  of  the  stream, 
and  he  may,  by  subsequent  appropriation,  take  all  the  water 
of  the  stream  if,  at  the  time  of  such  increased  appropria- 
tion, there  are  no  other  -riparian  owners  or  prior  appro- 
priators,  and  persons  who  subsequently  become  riparian 
owners  acquire  no  rights  in  the  water  as  against  him.174  An 
appropriator  who  has  acquired  the  right  to  all  of  the  water 
of  a  stream  in  its  ordinary  flow  is  not  entitled  to  surplus 
water  flowing  in  the  stream  during  times  of  extraordinary 
high  water  or  freshets,  and  cannot  restrain  the  diversion 
of  such  surplus  by  another.175 

§    58.    Same—  Surplus  Water. 

As  already  stated,  the  right  of  a  prior  appropriator  to  the 
water  of  a  stream  is  measured  by  the  extent  of  his  appro- 
priation, —  that  is,  by  the  quantity  of  water  actually  diverted 
and  used  or  needed  by  him.  So  long  as  he  is  able  to  se- 
cure the  full  amount  of  water  which  he  may  lawfully  claim, 
he  cannot  complain  that  other  persons,  located  higher  up 
the  stream,  are  diverting  water  therefrom,1  Tt{  even  though 


v.  Woodruff,  97  Cal.  464,  32  Pac.  528;  Hammond  v.  Rose, 
11  Colo.  524,  19  Pac.  466;  Drake  v.  Earhart,  2  Idaho,  716,  23  Pac. 
541;  Mahoney  v.  Neiswanger  (Idaho,  1899)  59  Pac.  561;  Roeder  v. 
Stein,  23  Nev.  92,  42  Pac.  867;  Low  v.  Schaffer,  24  Ore.  239,  33  Pac. 
678;  Offield  v.  Ish  (Wash.,  1899)  57  Pac.  809. 

IT*  Healy  v.  Woodruff,  97  Cal.  464,  32  Pac.  528. 

ITS  Edgar  v.  Stevenson,  70  Cal.  286,  11  Pac.  704. 

176  Edgar  v.  Stevenson,  70  Cal.  286,  11  Pac.  704;  Saint  v.  Guer- 
rerio,  17  Colo.  448,  30  Pac.  335. 

(102) 


Ch.  3J  DOCTRINE  OF  APPROPRIATION.  §  58 

the  effect  of  such  diversion  may  be  to  deprive  him  of  some 
of  the  water  to  which  he  is  entitled,  where  this  result  may  be 
avoided  by  his  perfecting  his  own  means  of  diversion,  so  as 
to  avoid  unnecessary  waste.177  In  the  water  not  covered 
by  his  own  appropriation  he  has  no  interest  whatever.  The 
surplus  remaining  above  his  appropriation  is  subject  to  ap- 
propriation by  others,  and  where  he  has  diverted  more  water 
than  he  is  entitled  to,  the  prior  appropriator  will  not  be 
permitted  to  waste  it,  or  dispose  of  it  to  others,  but  must 
return  such  surplus  to  the  stream  for  the  benefit  of  subse- 
quent appropriators.178  Thus,  a  prior  appropriator  of  the 
water  of  a  stream,  after  subsequent  appropriations  have 
been  made,  cannot,  after  his  own  wants  have  been  satisfied, 
sell  the  surplus  water  to  a  stranger,  so  as  to  deprive  the  sub- 
sequent appropriators  of  the  use  thereof.179  I^or  can  he 
give  such  surplus  to  one  of  the  later  appropriators,  so  as 
to  confer  upon  him  superior  rights  thereto,  as  against  the 
other  appropriators.180  When  returned  to  its  natural  chan- 
nel, such  surplus  water  becomes,  as  before,  a  part  of  the 
waters  of  the  natural  stream,  and  inures  to  the  benefit  of 
other  appropriators  in  the  order  of  their  appropriations.181 
The  rights  of  a  subsequent  appropriator  are,  of  course,  lim- 
ited to  the  water  not  already  appropriated,  and  he  cannot, 
by  appropriating  the  surplus  returned  to  the  stream  by  a 

"7  Natoma  Water  &  Min.  Co.  v.  Hancock,  101  Cal.  42,  31  Pac.  112, 
35  Pac.  334. 

178  Creek  v.  Bozeman  Water  Works  Co.,  15  Mont.  121,  38  Pac.  459; 
Simmons  v.  Winters,  21  Ore.  35,  27  Pac.  7;  Manning  v.  Fife,  17 
Utah,  232,  54  Pac.  111. 

i7»  Creek  v.  Bozeman  Water  Works  Co.,  15  Mont.  121,  38  Pac.  459. 

iso  Manning  v.  Fife,  17  Utah,  232,  54  Pac.  111. 

isi  Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld  Reservoir  Co., 
25  Colo.  87,  53  Pac.  386. 

(103) 


§  59  LAW  OF  IRRIGATION.  [Ch.  3 

prior  appropriator,   acquire   any  right  to  the  water  origi- 
nally appropriated  by  the  latter.182 

§    59.    Same— Enlargement  or  Extention  of  Use. 

In  the  preceding  sections,  we  have  considered  the  extent 
of  the  appropriator's  right,  as  secured  by  his  original  appro- 
priation. We  will  now  inquire  as  to  his  right  to  subse- 
quently enlarge  or  extend  the  use  contemplated,  so  as  to  con- 
sume a  greater  quantity  of  water.  The  law  on  this  subject 
is  well  settled.  The  rights  of  an  appropriator  of  water  are 
fixed  by  the  extent  of  his  original  appropriation  for  a  bene- 
ficial use.  Water  not  covered  by  his  appropriation  may  be 
appropriated  by  others,  whose  rights  will  depend  for  prior- 
ity upon  the  order  of  their  respective  appropriations.  Each 
appropriator,  with  respect  to  his  particular  appropriation, 
has  a  prior  and  exclusive  right,  as  against  all  other  appro- 
priators  of  other  water  from  the  same  stream,  whether  their 
appropriations  were  made  before  or  after  his  own.  From 
these  principles  it  follows  that  an  appropriator  whose  rights 
are  thus  fixed  by  his  appropriation  cannot  afterwards  en- 
large or  extend  his  use  of  the  water,  so  as  to  interfere  with 
the  vested  rights  of  other  appropriators.183  Thus,  where 
prior  appropriators  of  water  permitted  a  portion  of  it  to 
run  to  waste,  without  putting  it  to  a  beneficial  use,  and 
others  appropriated  such  surplus,  and  used  it  for  the  irriga- 

182  Brown  v.  Mullin,  65  Cal.  89,  3  Pac.  99. 

iss  Union  Mill  &  Mining  Co.  v.  Dangberg,  81  Fed.  73;  Cache  La 
Poudre  Reservoir  Co.  v.  Water  Supply  &  Storage  Co.,  25  Colo.  161, 
53  Pac.  331;  Colorado  Milling  &  Elevator  Co.  v.  Larimer  &  Weld 
Irr.  Co.  (Colo.  Sup.  1899)  56  Pac.  185;  Church  v.  Stillwell,  12  Colo. 
App.  43,  54  Pac.  395;  Becker  v.  Marble  Creek  Irr.  Co.,  15  Utah,  225, 
49  Pac.  892,  1119. 

(104) 


'Ch.  3]  DOCTRINE  OF  APPROPRIATION.  §  59 

tion  of  their  lands,  it  was  held  that  the  earlier  appropria- 
tors  could  not,  by  increasing  their  acreage,  interfere  with  the 
rights  of  the  subsequent  appropriators,  acquired  before  such 
increased  use.184  So,  also,  an  irrigation  company,  which 
has  acquired  a  right  to  a  certain  quantity  of  water  for  irri- 
.gationj  cannot  afterwards  divert  an  additional  quantity  of 
water  for  storage,  so  as  to  deprive  other  appropriators  of 
the  water  appropriated  by  them  after  the  company's  first 
^appropriation,  but  before  the  diversion  for  storage.185  Of 
course,  one  who  has  appropriated  a  certain  quantity  of  water 
from  a  stream  may  afterwards  make  a  new  appropriation, 
from  the  same  stream,  of  any  water  not  in  the  meantime 
appropriated  by  others,  but  his  right  to  such  additional 
water  will  depend  wholly  upon  the  validity  of  the  new  ap- 
propriation, and  will  date  therefrom;  such  appropriation 
being  entirely  independent  of  any  former  appropriation  by 
him  from  the  same  stream.186 

It  should  be  noted  that  the  statements  made  in  this  sec- 
tion apply  only  to  an  enlargement  of  the  use  as  originally 
•contemplated.  As  we  have  already  seen,  an  appropriate!' 
who  claims  a  certain  amount  of  water  may,  in  some  cases, 
use  a  portion  of  it  the  first  year,  and  increase  the  quantity 
used  from  year  to  year,  until  he  has  applied  to  beneficial 
use  all  the  water  covered  by  his  original  appropriation.187 
This  is  not  such  an  enlargement  of  use  as  is  contemplated 
in  the  present  section. 

is*  Becker  v.  Marble  Creek  Irr.  Co.,  15  Utah,  225,  49  Pac.  892,  1119. 
iss  Colorado  Milling  &  Elevator  Co.  v.  Larimer  &  Weld  Irr.  Co. 
(Colo.  Sup.,  1899)  56  Pac.  185. 
ise  Healy  v.  Woodruff,  97  Cal.  464,  32  Pac.  528. 
IST  See  ante,  §  48. 

(105) 


§   60  LAW  OF  IRRIGATION.  f  Ch.  3 

§    60.    Right  to  Flow  of  Tributaries. 

Where  an  irrigator,  by  prior  appropriation,  has  acquired 
the  right  to  the  flow  of  a  stream,  or  to  a  certain  quantity 
of  the  water,  it  follows  necessarily  that  his  appropriation 
is,  in  effect,  an  appropriation  also  of  all  the  tributaries  and 
other  sources  of  supply  of  the  stream,  so  far  as  this  may  be 
necessary  to  insure  to  him  the  quantity  of  water  covered  by 
his  appropriation.  Hence,  other  appropriators  or  persons 
will  not  be  permitted  to  so  divert  or  control  the  water  of 
tributary  streams  as  to  cut  off  the  sources  of-  supply,  and 
prevent  the  prior  appropriator  from  receiving  the  full 
amount  of  water  to  which  he  is  entitled.188  Thus,  the  owner 
of  land  on  which  a  spring  rises  may  be  restrained  from  di- 
verting the  water  therefrom,  to  the  prejudice  of  a  prior  ap- 
propriator from  a  stream  naturally  fed  by  such  spring.189' 
It  will  be  presumed  that  water  flowing  in  a  natural  channel, 
which  reaches  the  banks  of  a  stream,  and  there  disappears 
in  the  sands  of  the  bed,  augments  the  flow  in  the  main 
stream  by  percolation,  until  the  contrary  is  shown ;  and 
the  burden  of  proof  is  on  the  party  diverting  such  water  to' 
establish  that  it  does  not  mingle  with  the  main  waters  of  the 
stream.190 

iss  Strickler  v.  City  of  Colorado  Springs,  16  Colo.  61,  26  Pac.  313; 
Farmers'  Independent  Ditch  Co.  v.  Agricultural  Ditch  Co.,  22  Colo. 
513,  45  Pac.  444;  Bruening  v.  Dorr,  23  Colo.  195,  47  Pac.  290;  Platte 
Val.  Irr.  Co.  v.  Buckers  Irr.,  Mill.  &  Imp.  Co.,  25  Colo.  77,  53  Pac. 
334;  Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld  Reservoir  Co., 
25  Colo.  87,  53  Pac.  386;  Malad  Val.  Irr.  Co.  v.  Campbell,  2  Idaho, 
378,  18  Pac.  52;  Strait  v.  Brown,  16  Nev.  317;  Low  v.  Schaffer,  24 
Ore.  239,  33  Pac.  678;  Low  v.  Rizor,  25  Ore.  551,  37  Pac.  82. 

is9  Bruening  v.  Dorr,  23  Colo.  195,  47  Pac.  290. 

i9*>  Platte  Val.  Irr.  Co.  v.  Buckers  Irr.,  Mill.  &  Imp.  Co.,  25  Colo. 
77,  53  Pac.  334. 

(106) 


Ch.  3]  DOCTRINE  OF  APPROPRIATION.  §  60 

The  application  of  the  general  rule  is  not  limited  to  the 
ordinary  sources  of  supply,  such  as  springs  and  tributary 
streams.  Thus,  where  an  appropriator  had  acquired  the 
right  to  the  flow  of  a  stream  having  its  source  in  a  lake, 
it  was  held  that  other  persons  had  no  right,  by  tapping  the 
lake  by  irrigating  ditches,  so  to  lower  its  level  as  to  deprive 
the  prior  appropriator  of  some  of  the  water  which  he  had 
appropriated.191 

Ordinarily,  an  appropriator  will,  in  the  nature  of  things, 
have  no  interest  in  the  water  of  the  main  stream,  or  of  its 
tributaries,  below  his  point  of  diversion,  but  the  rule  is  other- 
wise where  he  is  liable  to  be  called  upon  for  contribution 
to  supply  the  wants  of  other  appropriators  lower  down.  In 
such  case,  he  is  accordingly  entitled  to  the  flow  of  lower  trib- 
utaries, as  against  junior  appropriators  thereof,  when  this 
is  necessary  to  protect  him  against  the  claims  of  lower  prior 
appropriate^  from  the  main  stream.  This  question  was  re- 
cently raised  in  the  supreme  court  of  Colorado,  and  it  was 
held  that  a  prior  appropriator  of  the  water  of  a  stream 
might  require  a  junior  appropriator  from  a  lower  tributary 
to  surrender  the  use  of  the  water,  before  he  himself  should 
be  required  to  do  so,  in  favor  of  lower  appropriations  from 
the  main  stream,  senior  to  both.192  In  such  case,  the  lower 
senior  appropriators  are  not  necessary  parties  in  an  action 
to  determine  which  of  the  upper  appropriators  shall  first 
surrender  his  use,  as  this  is  a  question  in  which  they  have 
no  concern.193 

191  Baxter  v.  Gilbert  (Gal.,  1899)  58  Pac.  129. 

192  Platte  Val.  Irr.  Co.  v.  Buckers  Irr.,  Mill.  &  Imp.  Co.,  25  Colo. 
77,  53  Pac.  334;   Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld 
Reservoir  Co.,  25  Colo.  87,  53  Pac.  386. 

193  Water  Supply  &   Storage  Co.  v.  Larimer  &   Weld   Reservoir 
Co.,  25  Colo.  87,  53  Pac.  386. 

(107) 


§  61  LAW  OF  IRRIGATION.  [Ch.  3 

The  rule  giving  a  prior  appropriator  the  right  to  the  flow 
of  tributary  streams  will  not  be  extended  further  than  is 
necessary  to  protect  him  in  his  rights,  and  he  cannot  com- 
plain of  the  diversion  of  the  water  of  tributaries  unless  his 
rights  are  thereby  invaded.  Thus,  the  diversion  of  the 
water  of  a  tributary  will  not  be  restained  at  the  suit  of  a 
lower  appropriator  from  the  main  stream,  unless  such  diver- 
sion diminishes  the  quantity  of  water  which  would  other- 
wise reach  the  main  stream  by  a  natural  channel,  and  short- 
ens the  period  of  the  natural  flow,  and  then  it  will  be  re- 
strained only  as  to  such  quantity  and  period.194  The  prior 
appropriator  has  no  ground  of  action  so  long  as  he  receives 
all  the  water  to  which  he  is  entitled.195 

§    61.    Use  of  Water  by  Periods. 

As  we  have  already  seen,  a  prior  appropriator  of  water 
acquires  an  absolute  right  thereto  only  to  the  extent  to  which 
such  water  is  applied  to  a  beneficial  use.  His  right  to  the 
water  depends  upon  user,  and  can  exist  or  continue  only 
at  or  during  such  times  as  the  water  is  used  or  needed  for  a 
beneficial  purpose.  If,  ^  therefore,  the  prior  appropriator 
.makes  use  of  the  water  only  at  certain  times,  as  during  cer- 
tain seasons,  or  on  certain  days  in  the  week,  or  during  a  cer- 
tain number  of  days  in  a  month,  other  persons  may  acquire  a 
right  to  the  use  of  the  water  at  other  times,  or  on  other 
days.196  So,  also,  where  several  persons  appropriate  water 

194  Faulkner  v.  Rondoni,  104  Cal.  140,  37  Pac.  883. 

i95Creighton  v.  Kaweah  Canal  &  Irr.  Co.,  67  Cal.  221,  7  Pac.  658; 
Salina  Creek  Irr.  Co.  v.  Salina  Stock  Co.,  7  Utah,  456,  27  Pac.  578. 

IBS  Santa  Paula  Water  Works  v.  Peralta,  113  Cal.  38,  45  Pac.  168, 
following  Smith  v.  O'Hara,  43  Cal.  371;  Barnes  v.  Sabron,  10  Nev. 
(108)  . 


Ch.  3]  DOCTRINE  OF  APPROPRIATION.  §  61 

as  tenants  in  common,  they  may  agree  among  themselves  that 
each  shall  have  the  use  of  the  water  at  certain  times.197 

217;  Stowell  v.  Johnson,  7  Utah,  215,  26  Pac.  290.  See,  also,  Cache 
La  Poudre  Reservoir  Co.  v.  Water  Supply  &  Storage  Co.,  25  Colo. 
161,  53  Pac.  331;  Salina  Creek  Irr.  Co.  v.  Salina  Stock  Co.,  7  Utah, 
456,  27  Pac.  578. 

i»7  Lytle  Creek  Water  Co.  v.  Perdew,  65  Gal.  447,  4  Pac.  426.    See 
Santa  Paula  Water  Works  v.  Peralta,  113  Cal.  38,  45  Pac.  168. 

(109) 


§  62  LAW  OF  IRRIGATION.  [Ch.  4 

CHAPTER  IV. 

RIGHT  OF  WAY  FOR  DITCHES  AND  CANALS. 

§  62.     Generally — Condemnation  of  Right  of  Way. 

63.  Condemnation  of  Right  of  Way — Right  of  Condemnation  Lim- 

ited. 

64.  Same — Enlargement  of  Ditch  Already  Constructed. 

65.  Same — Assessment  of  Damages. 

66.  Right  of  Way  over  Public  Lands. 

67.  Right  of  Entry  for  Construction  and  Maintenance  of  Ditch. 

§    62.    Generally— Condemnation  of  Right  of  Way. 

The  right  to  appropriate  water  for  irrigation  purposes 
would  be  of  little  value,  except  to  the  owners  of  land  lying 
adjacent  to  the  stream  from  which  the  water  is  to  be  taken, 
unless  accompanied  with  authority  to  secure  a  right  of  way 
over  the  lands  of  others  for  the  construction  of  ditches  or 
other  works  for  the  conveyance  of  the  water  to  the  place  of 
intended  use.  A  right  of  way  over  private  lands  may,  of 
course,  be  obtained  by  arrangement  with  the  owner,  in 
which  case  the  extent  of  such  right,  the  amount  of  compensa- 
tion to  be  paid  therefor,  the  conditions  of  the  grant,  etc.,  will 
depend  upon  the  terms  of  the  contract  between  the  parties.1 
So,  also,  a  right  of  way  may  be  acquired  by  prescription.2 

1  A  right  of  way  .may  be   acquired    by    implied    grant.      Thus, 
where  a  ditch  is  constructed  across  one  of  two  adjoining  tracts  of 
land,  owned  by  the  same  person,  for  the  purpose  of  irrigating  the 
other,  and  the  owner  subsequently  conveys  the  two  tracts  to  dif- 
ferent persons,  the  two  grantees  take  their'  respective  tracts,  one 
subject  to,  and  the  other  entitled  to,  such  easement.     Quinlan  v. 
Noble,  75  Cal.  250,  17  Pac.  69. 

2  Where  the  owner  of  land  has  conducted  water  for  the  irrigation 
(110) 


•Ch.  4]  RIGHT  OF  WAY.  §   62 

But  the  possibility  of  securing  the  all-important  right  of 
way  for  irrigating  ditches  could  not  safely  be  left  to  depend 
upon  the  acquiescence  of  the  landowner,  or  his  willingness 
to  grant  such  right,  either  in  no  event,  or  upon  whatever 
terms  he  might  see  fit  to  impose.  And  it  is  provided  in  the 
several  arid  states  by  constitution  or  statute,  or  both,  that 
a  right  of  way  across  private  as  well  as  public  lands  may  be 
secured  for  irrigation  purposes  by  condemnation,  upon  the 
payment  of  just  compensation.3 

In  some  of  the  states,  as  in  Colorado,  the  right  of  con- 
demnation may  be  exercised,  although  the  use  of  water  for 
irrigation  be  a  private  use.4  The  exercise  of  the  power  of 
•condemnation  is  justified  in  Colorado  on  the  ground  of  ne- 
cessity; and  all  lands  in  the  state  are  declared  to  be  held 
in  subordination  to  the  dominant  right  of  others,  who  must 
necessarily  pass  over  them  to  obtain  a  supply  of  water  to 
irrigate  their  own  lands,  and  this  servitude  arises,  not  by 
grant,  but  by  operation  of  law.5  In  other  states,  the  stat- 
utes authorizing  the  exercise  of  the  right  of  condemnation 

thereof  over  the  land  of  another  for  more  than  ten  years,  with  the 
acquiescence  of  the  owner  of  the  servient  estate,  he  acquires  an 
easement  therein  by  prescription,  although  the  original  grant  of 
such  easement  may  have  been  by  parol.  Coventon  v.  Seufert,  23 
Ore.  548,  32  Pac.  508.  See,  also,  Miller  v.  Douglas  (Ariz.,  1900)  60 
Pac.  722.  An  irrevocable  right  to  an  easement  for  a  water  ditch 
cannot  be  acquired  by  a  mere  permissive  use,  not  amounting  to  ad- 
verse user.  Yeager  v.  Woodruff,  17  Utah,  361,  53  Pac.  1045. 

3  See  statutes  in  Appendix. 

•*  See  Const.  Colo.  art.  2,  §  14. 

3  Yunker  v.  Nichols,  1  Colo.  551.  See,  also,  opinion  of  Thatcher, 
•C.  J.,  in  Schilling  v.  Rominger,  4  Colo.  100. 

The  statute  granting  a  right  of  way  for  irrigating  ditches  over 
the  land  of  others,  now  in  force  in  Colorado  (Mills'  Ann.  St.  §  2257), 
was  passed  by  the  first  legislative  assembly  of  the  then  territory  in 

(111) 


§  62  LAW  OF  IRRIGATION.  [Ch.  4 

have  been  held  constitutional,  on  the  ground  that  the  use- 
contemplated  is  a  public  use.6 

It  is  to  be  noted  that,  where  a  statute  confers  a  right  of 
way  for  an  irrigating  ditch  over  the  land  of  another,  a  per- 
son cannot,  by  the  mere  force  of  the  statute,  go  upon  such* 
land  without  the  owner's  consent,  and  construct  a  ditch.  Be- 

1861.  In  Yunker  v.  Nichols,  1  Colo.  551,  Wells,  J.,  in  a  concurring: 
opinion,  said:  "It  appears  to  me  that  this  right  must  rest  alto- 
gether upon  the  necessity,  rather  than  upon  the  grant  which  the- 
statute  assumes  to  make,  *  *  *  and  existed  before  the  statute 
was  enacted,  and  would  still  survive,  though  the  statute  were  re- 
pealed." This  case  was  decided  before  the  adoption  of  the  consti- 
tution in  1876. 

eQuray  v.  Goodwin  (Ariz.,  1891)  26  Pac.  376;  Ellinghouse  v.  Tay- 
lor, 19  Mont.  462,  48  Pac.  757;  Paxton  &  Hershey  Irr.  Canal  &  Land 
Co.  v.  Farmers'  &  Merchants'  Irr.  &  Land  Co.,  45  Neb.  884,  64  N. 
W.  343.  See,  also,  as  to  condemnation  by  irrigation  companies, 
post,  §  127. 

Where,  in  a  proceeding  to  condemn  a  strip  of  defendant's  land 
for  a  canal,  the  complaint  alleged  that  "the  uses  for  which  said  wa- 
ter is  intended  and  designed  are  mining,  irrigation,  manufacturing,, 
and  household  and  domestic  purposes;  that  the  line  of  said  canal 
has  been  surveyed  and  located  upon  the  ground,  and  marked  out, 
etc.;  *  *  *  that  along  said  line  of  canal  there  are  many  valua- 
ble mining  claims,  and  a  large  body  of  undeveloped  mining  land, 
besides  much  agricultural  land;  that  said  mining  claims  cannot  be 
worked,  nor  can  said  mineral  land  be  developed,  nor  can  said  agri- 
cultural land  be  profitably  cultivated,  without  water  brought  upon 
the  same  by  artificial  means;  that  said  canal  is  intended  to  and 
will  supply  this  want  by  the  sale  and  distribution  of  the  said  water 
along  its  line,  and  at  its  terminus  at  Thompson's  Flat,  and  such  i& 
the  design  and  intention  of  the  plaintiff;  and  he  avers  that  it  is  a 
public  use,  and  that  he  is  in  charge  thereof;  *  *  *  that  the 
taking  of  a  portion  of  said  land  of  the  defendant  for  said  use  is. 
necessary,"  etc., — this  was  held  to  be  a  sufficient  averment  of  a 
public  use  to  bring  the  case  within  the  provisions  of  Code  Civ. 
Proc.  Cal.  §  1238,  and  Const.  Cal.  art.  14,  §  1.  Cummings  v.  Peters, 
56  Cal.  593. 
(112) 


Ch.  4]  RIGHT  OF  WAY.  §  63 

fore  such  right  may  be  exercised,  it  must  be  first  definitely 
ascertained  by  a  proper  proceeding  in  eminent  domain.7 
The  manner  of  exercising  the  right  of  condemnation  is  regu- 
lated in  the  several  states  by  statute.8  Thus,  in  Colorado,, 
the  act  on  the  subject  of  eminent  domain  prescribes  a  com- 
plete system  of  procedure  for  the  taking  or  damaging  of 
private  property,  and  determining  the  compensation  there- 
for when  such  taking  or  damaging  is  authorized  by  law. 
Proceedings  under  the  act  are  special  proceedings,  and  differ 
in  many  respects  from  ordinary  civil  actions  under  the 
Code.  The  provisions  of  the  Code  are  therefore  inapplica- 
ble to  such  proceedings.9  In  Colorado,  the  county  court 
has  concurrent  jurisdiction  with  the  district  court  to  enter- 
tain condemnation  proceedings  to  secure  a  right  of  way 
where  the  amount  of  damages  and  the  value  of  the  land 
taken  are  within  the  money  limit  placed  upon  its  jurisdic- 
tion.10 

§    63.    Condemnation  of  Right  of  Way— Right  of  Condemnation. 
Limited. 

While  the  irrigator  is  given  the  absolute  right  of  way 
over  the  lands  of  others  for  the  construction  of  his  irrigating 
ditches,  etc.,  it  is  proper  that  this  privilege  should  be  exer- 

T  Emerson  v.  Eldorado  Ditch  Co.,  18  Mont.  247,  44  Pac.  969;  Toy- 
aho  Creek  Irr.  Co.  v.  Hutchins  (Tex.  Civ.  App.,  1899)  52  S.  W.  101. 

8  Consult  the  statutes  of  the  several  states  on  the  subject  of  emi- 
nent domain.  The  right  of  a  purely  private  party  to  condemn  a 
right  of  way  for  a  ditch  to  convey  water  to  his  lands  for  domestic,, 
agricultural,  and  mining  purposes  is  guarantied  by  the  constitu- 
tion of  Colorado,  and  the  manner  of  exercising  the  right  is  regu- 
lated by  statute.  Downing  v.  More,  12  Colo.  316,  20  Pac.  766. 

»Tripp  v.  Overocker,  7  Colo.  72,  1  Pac.  695;  Knoth  v.  Barclay,  8 
Colo.  300,  6  Pac.  924. 

10  Southwestern  Land  Co.  v.  Hickory  Jackson  Ditch  Co.,  18  Colo. 

(113) 


§  63  LAW  OF  IRRIGATION.  [Ch.  4 

cised  with  a  due  regard  to  the  rights  of  the  owners  of  the 
land  thus  burdened.  In  Colorado  a  statute  has  been  passed 
limiting  the  right  of  condemnation  for  the  protection  of  the 
landowner.  By  this  statute  it  is  provided  that  no  tract  or 
parcel  of  improved  or  occupied  land  in  the  state  shall,  with- 
out the  written  consent  of  the  owner,  be  burdened  with 
two  or  more  irrigating  ditches  for  the  conveyance  of  water 
to  other  lands,  where  all  the  water  necessary  to  be  conveyed 
through  such  property  can  be  conveyed  in  a  single  ditch.11 
This  act  does  not  conflict  with  the  constitutional  provisions 
granting  a  right  of  way  for  the  construction  of  ditches,  but, 
while  recognizing  the  privilege,  simply  undertakes  to  regu- 
late the  exercise  thereof,  so  as  to  inflict  the  least  possible  in- 
ieonvenience  and  injury  upon  the  owner  of  the  servient  es- 
tate.12 It  has  been  held  by  the  Colorado  court  of  appeals 
that  the  provisions  of  this  act  are  intended  for  the  protection 
of  private  landowners,  and  cannot  be  invoked  by  an  irriga- 
tion company  in  a  proceeding  by  a  rival  company  to  con- 
demn a  right  of  way  across  the  land  of  the  former.13  Pro- 
visions similar  to  the  Colorado  act  are  found  in  the  stat- 
utes of  Oregon14  and  Nebraska  relating  to  ditch  companies. 
The  Nebraska  statute,  which  provides  that  "no  tract  of  land 
shall  be  crossed  by  more  than  one  ditch,"  etc.,  is  somewhat 
more  general  in  its  terms  than  that  of  Colorado,  and  is  held 

489,  33  Pac.  275;  Otero  Canal  Co.  v.  Fosdick,  20  Colo.  522,  39  Pac. 
332;  Sievers  v.  Garfield  County  Court,  11  Colo.  App.  147,  52  Pac. 
€34. 

11  Mills'  Ann.  St.  §  2261. 

12  Tripp  v.  Overocker,  7  Colo.  72,  1  Pac.  695. 

13  San-  Luis  Land,  Canal  &  Imp.  Co.  v.  Kenilworth  Canal  Co.,  3 
Colo.  App.  244,  32  Pac.  860.       • 

14  Laws  Ore.  1891,  p.  56,  §§  12,  13. 

(114) 


Ch.  4]  RIGHT  OF  WAY.  §  63 

to  include  the  property  of  corporations,  as  well  as  of  natural 
persons.15  Another  provision  for  the  protection  of  the  land- 
owner is  that  the  ditch  shall  be  constructed  over  the  shortest 

is  Paxton  &  Hershey  Irr.  Canal  &  Land  Co.  v.  Farmers'  &  Mer- 
chants' Irr.  &  Land  Co.,  45  Neb.  884,  64  N.  W.  343.  This  case,  in 
the  supreme  court  of  Nebraska,  was  an  appeal  from  a  decree  of  the 
Lincoln  county  district  court,  dismissing  the  action  of  the  plaintiff 
company,  whereby  it  sought  to  prevent  the  appropriation  by  the 
defendant  company  of  a  right  of  way  through  its  lands  for  an  irri- 
gating canal,  under  the  provisions  of  the  Rayner  irrigation  law  of 
1889.  The  plaintiff  contended  that  it  was  within  the  exception 
contained  in  section  3,  art.  1,  of  the  act,  as  follows:  "No  tract  of 
land  shall  be  crossed  by  more  than  one  ditch,  canal,  or  lateral  with- 
out the  written  consent  and  agreement  of  the  owner  thereof,  if  the 
first  ditch,  canal,  or  lateral  can  be  made  to  answer  the  purpose  for 
which  the  second  is  desired  or  intended."  The  district  court  de- 
creed that  this  section  was  not  applicable  to  the  facts  in  the  case, 
for  the  reason  that  the  defendant's  contemplated  ditch  was  not  be- 
ing constructed  for  the  purpose  of  irrigating  the  lands  crossed  by 
the  plaintiff's  ditch,  nor  the  lands  lying  under  it,  but  for  the  irri- 
gation of  lands  lying  beyond  and  below  it,  and  that  the  defendant 
was  entitled  to  cross  the  plaintiff's  lands  for  the  purpose  of  con- 
structing its  ditch,  on  complying  with  the  requirements  of  law  for 
that  purpose.  The  supreme  court  affirmed  this  decree.  Post,  J., 
after  referring  to  the  Colorado  decision  above  cited,  said:  "We 
are,  however,  unable  to  accept  that  case  as  an  authoritative  inter- 
pretation of  our  statute.  The  term,  'no  tract  of  land,'  as  employed 
without  qualifications,  must  be  held  to  include  the  property  of  cor- 
porations, as  well  as  natural  persons,  and  such  would  have  been 
the  construction  had  the  statute  read,  'the  land  of  no  person  shall 
be  crossed,'  etc.  [citing  authorities].  But  we  reach  the  same  con- 
clusion as  the  district  court, — presumably  by  the  same  course  of 
reasoning.  *  *  *  Referring  again  to  the  proviso  involved,  we 
are  first  impressed  with  the  fact  that  the  primary  object  thereof 
is  the  protection  of  landowners,  rather  than  the  proprietors  of  irri- 
gating ditches.  True,  both  characters  may,  as  in  this  instance,  be 
united  in  one  person  or  corporation,  but  such  cases  are  exceptions, 
and  apparently  not  within  the  contemplation  of  the  legislature.  It 
is,  in  the  second  place,  noticeable  that  the  act  is  silent  respecting 

(115) 


§  64  LAW  OF  IRRIGATION.  [Ch.  4 

and  most  direct  route  practicable  upon  which  such  ditch 
can  be  constructed  with  uniform  grade,  and  discharge  the 
water  at  a  point  whence  it  can  be  conveyed  to  the  place  of 
use.16 

§    64.    Same— Enlargement  of  Ditch  Already  Constructed, 

The  Colorado  statute  contains  a  further  provision,  by 
which  effect  is  given  to  the  provisions  considered  in  the  pre- 
ceding section,  which  prohibits  a  person  who  has  constructed 
a  private  ditch  to  convey  water  through  the  lands  of  an- 
other from  prohibiting  or  preventing  other  persons  from  en- 
larging or  using  such  ditch  in  common  with  him.17  This 
section  applies  only  to  ditches  constructed  through  the  lands 
of  others,  to  convey  water  to  other  lands,  and  not  to  ditches 
constructed  by  a  landowner  on  his  own  land  for  the  irriga- 
tion of  such  land  exclusively.18  The  ditches  subject  to  en- 
largement and  joint  use  under  this  section  are  strictly  pri- 
vate ditches,  and  such  as  are  used  to  convey  water  across  the 

the  terms  and  conditions  upon  which  one  irrigating  company  may 
make  use  of  the  canal  or  ditch  of  another.  Nor  is  the  proprietor 
of  such  a  ditch  required  to  supply  water  upon  any  terms  to  a  rival 
corporation.  We  are,  after  a  careful  analysis  of  the  lan- 
guage of  the  exception,  unable  to  say  that  it  contemplates  the  con- 
necting of  different  canals,  or  that  it  imposes  upon  one  irrigating 
company  any  duty  to  supply  water  to  the  patrons  of  another.  What 
the  statute  implies  is  that  no  tract  of  land  shall,  without  the  con- 
sent of  the  owner,  be  burdened  with  two  or  more  ditches  for  the 
watering  of  the  same  territory." 

is  Mills'  Ann.  St.  §  2262;  Downing  v.  More,  12  Colo.  316,  20  Pac. 
766. 

IT  Mills'  Ann.  St.  §  2263.  See,  also,  Laws  Ore.  1891,  p.  56,  §  13. 
As  to  proceedings  under  the  Colorado  statute,  see  Sand  Creek  Lat- 
eral Irr.  Co.  v.  Davis,  17  Colo.  326,  29  Pac.  742. 

is  Downing  v.  More,  12  Colo.  316,  20  Pac.  766,  modifying  Tripp  v. 
Overocker,  7  Colo.  72,  1  Pac.  695. 

(116) 


Ch.  4]  RIGHT  OF  WAY.  §  64 

land  of  another  to  irrigate  the  adjoining  land  of  the  person 
or  corporation  owning  the  ditch.  A  city  cannot,  by  virtue 
of  this  section,  acquire  the  right  to  enlarge  and  use,  for  the 
purpose  of  supplying  its  citizens  with  water,  a  ditch  used 
for  the  carriage  of  water  for  hire  to  the  public  generally.19 
But  the  mere  fact  that  the  ditch  is  owned  by  an  incorporated 
company  does  not  exempt  it  from  the  operation  of  the  stat- 
ute, where  such  ditch  is  used  for  private,  and  not  for  public, 
purposes.20 

The  using  or  enlarging  of  the  ditch  of  another  without 
his  consent  is  as  much  a  taking  or  damaging  of  private  prop- 
erty, within  the  meaning  of  the  constitution,  as  would  be  ap- 
propriating a  right  of  way  therefor  in  the  first  instance,  and 
the  owner  of  such  clitch  is  entitled  to  just  compensation,  to 
be  determined  in  the  manner  required  by  law.  And  the 
section  under  consideration,  though  otherwise  constitutional, 
has  been  held  unconstitutional,  in  that,  by  providing  for 
such  enlargement  or  use  upon  the  payment  to  the  ditch  own- 
er of  a  reasonable  proportion  of  the  cost  of  construction  of 
the  ditch,  it  limits  or  directs  the  compensation  to  be  paid 
for  the  property,  instead  of  leaving  this  to  be  determined  as 
provided  by  the  state  constitution.  The  rest  of  the  act,  how- 
ever, stands  as  a  valid  statute,  when  taken  in  connection 
with  other  statutes  and  the  constitutional  provisions  upon 
the  same  subject.21 

The  enlargement  or  improvement  of  a  ditch  under  this 

19  Junction  Creek  &  N.  D.  D.  &  I.  Ditch  Co.  v.  City  of  Durango, 
21  Colo.  194,  40  Pac.  356. 

20  Sand  Creek  Lateral  Irr.  Co.  v.  Davis,  17  Colo.  326,  29  Pac.  742. 

21  Tripp  v.  Overocker,  7  Colo.  72,  1  Pac.  695.     As  to  compensa- 
tion, see  Sand  Creek  Lateral  Irr.  Co.  v.  Davis,  17  Colo.  326,  29  Pac. 
742. 

(117) 


§  65  LAW  OP  IRRIGATION.  [Ch.  4 

statute  must  be  made  at  the  expense  of  the  person  desiring 
it.  The  owner  of  the  ditch  cannot  be  required  to  perform 
work  or  make  expenditures  for  the  purpose  of  adapting  his 
ditch  to  the  use  of  another.22  Where  a  ditch  is  enlarged  and 
extended  by  pthers  than  the  original  owners,  the  cost  of  re- 
pairs upon  the  new  ditch  from  the  terminus  of  the  old  is  not 
chargeable  upon  the  original  proprietors  of  the  old,  but 
the  keeping  of  the  headgate  and  the  ditch  to  its  original  ter- 
minus in  repair  is  the  duty  of  both  sets  of  owners,  the  ex- 
pense to  be  adjusted  upon  an  equitable  basis.23 

It  is  to  be  noted  that  a  person  does  not,  by  acquiring  a 
right  of  way  for  a  ditch  across  the  land  of  another,  acquire 
the  right  to  subsequently  enlarge  such  ditch,  and  if  he  so  en- 
larges it  without  the  consent  of  the  landowner,  he  will  be  lia- 
ble to  the  latter  in  damages.24 
8  65.  Same— Assessment  of  Damages. 

The  mode  of  ascertaining  the  amount  of  compensation 
to  be  paid  for  property  taken  or  injured  for  the  construction 
of  irrigating  ditches,  etc.,  is  prescribed  by  the  various  stat- 
utes and  constitutional  provisions  covering  the  law  of  emi- 
nent domain.  And  where  the  state  constitution  provides 
that  the  compensation  for  taking  or  damaging  private 
property  against  the  owner's  consent  must  be  ascertained  in 
a  particular  manner,  as  by  a  jury  or  board  of  commission- 
ers, this  requirement  is  imperative,  and  the  legislature  is 
powerless  to  dispense  with  it.25 

22  Sand  Creek  Lateral  Irr.  Co.  v.  Davis,  17  Colo.  326,  29  Pac.  742. 

23  Patterson  v.  Brown  &  Campion  Ditch  Co.,  3  Colo.  App.  511,  34 
Pac.  769. 

24  Clear  Creek  Land  &  Ditch  Co.  v.  Kilkenny,  5  Wyo.  38,  36  Pac. 
819.     As   to   enlargement   by   contract  with   the   ditch   owner,   see 
Chicosa  Irr.  Ditch  Co.  v.  El  Moro  Ditch  Co.,  10  Colo.  App.  276,  50 
Pac.  731. 

25  Tripp  v.  Overocker,  7  Colo.  72,  1  Pac.  695. 

(118) 


Ch.  4]  RIGHT  OF  WAY.  §  66 

All  damages,  present  and  prospective,  that  are  the  natural, 
necessary,  or  reasonable  incident  of  the  improvement,  must 
be  assessed  in  the  condemnation  proceedings,  not  including, 
however,  such  as  may  arise  from  the  negligent  or  unskilful 
construction  or  use  thereof.  And  where  damages  have  been 
assessed,  and  payment  made  and  accepted,  there  can  be  no 
subsequent  recovery  for  an  injury  which  should  have  been, 
but  was  not,  considered  in  computing  the  damages.  Thus, 
an  injury  to  land  resulting  from  seepage  and  leakage  from 
a  canal  or  reservoir  ought  to  be  anticipated,  and  damages 
therefor  included  in  the  original  assessment,  and  no  dam- 
ages for  such  injury  can  be  recovered  in  a  subsequent  action, 
except  so  far  as  the  injury  results  from  negligence  or  un- 
skilfulness.26 

8    66.    Right  of  Way  over  Public  Lands. 

The  act  of  congress  of  1866  and  the  amendatory  act  of 
1870  acknowledge  and  confirm  a  right  of  way  for  the  con- 
struction of  ditches  and  canals  in  favor  of  persons  who,  by 
priority  of  possession,  have  acquired  vested  rights  to  the  use 
of  water  on  the  public  domain,  and,  by  the  terms  of  the 
statute,  all  persons  who  acquire  title  to  the  land  from  the 
government  after  the  construction  of  ditches  or  reservoirs 
used  in  connection  with  such  water  rights  take  the  same  sub- 
ject to  the  burden  of  such  easements.  This  statute  consti- 
tutes a  grant  of  a  right  of  way  over  the  public  land  for  the 
purposes  specified.27  By  the  act  of  March  3,  1891,  a  right 

26  Denver  City  In.   &  Water  Co.  v.   Middaugh,  12   Colo.  434,  21 
Pac.  565.- 

27  Rev.  St.  U.  S.  §§  2339,  2340;  Jennison  v.  Kirk,  98  U.  S.  453;  Bro- 
der  v.  Water  Co.,  101  U.  S.  274;  Tynon  v.  Despain,  22  Colo.  240,  43 
Pac.  1039;   Nippel  v.  Forker  (Colo.  Sup.,  1899)  56  Pac.  577,  affirm- 

(119) 


§66  LAW  OF  IRRIGATION.  [Ch.4 

of  way  through  the  public  lands  and  reservations  is  granted 
to  ditch  companies  and  others  for  ditches  and  reservoirs, 
subject  to  certain  conditions,  upon  compliance  with  certain 
requirements  as  to  the  filing  of  proofs  of  organization  of  the 
company,  map  of  canal,  and  so  forth.28  This  act  applies  only 
to  vacant  and  unoccupied  land,  and  no  rights  can  be  claimed 
under  it  in  respect  to  land  to  which  private  rights  have  pre- 
viously attached.29  A  right  of  way  or  easement  over  public 
land  under  the  acts  of  1866  and  1870  can  be  claimed  onlyfor 
such  ditches  and  reservoirs  as  are  used  in  connection  with 
vested  and  accrued  water  rights,  and  a  person  cannot  claim 
an  easement  over  public  land  for  a  ditch  or  reservoir  under 
these  acts  unless  he  has  first  acquired  a  vested  and  accrued 
water  right,  in  connection  with  which  such  ditch  or  reser- 
voir is  to  be  used.30 

By  the  act  of  1870,  patents  granted,  or  pre-emptions  or 
homesteads  allowed,  are  declared  to  be  subject  to  rights  to 
ditches  and  reservoirs  used  in  connection  with  water  rights 
acquired  under  the  act  of  1866.  The  act  of  1866  contains 
a  proviso  that  whenever  any  person  or  persons  shall,  in  the 
construction  of  any  ditch  or  canal,  injure  or  damage  the  pos- 
ing 9  Colo.  App.  106,  47  Pac.  766.  See,  also,  Bybee  v.  Oregon  C.  R. 
Co.,  139  U.  S.  663.  A  ditch  constructed  on  unoccupied  public  land 
is  held  by  grant,  and  the  owner  does  not  forfeit  his  right  thereto 
by  mere  nonuser.  Ada  County  Farmers'  Irr.  Co.  v.  Farmers'  Ca- 
nal Co.  (Idaho,  1898)  51  Pac.  990.  One  may  construct  an  irrigat- 
ing ditch  on  unoccupied  public  land,  and  is  not  liable  to  a  subse- 
quent settler  thereon  for  damages  for  digging  the  ditch.  Shoe- 
maker v.  Hatch,  13  Nev.  261.  See,  also,  Miller  v.  Douglas  (Ariz., 
1900)  60  Pac.  722. 

2826  Stat.  p.  1101,  §§  18-21.     For  text  of  this  act,  see  Appendix. 

29Nippel  v.  Forker  (Colo.  Sup.,  1899)  56  Pac.  577,  affirming  9 
Colo.  App.  106,  47  Pac.  766. 

soNippel  v.  Forker   (Colo.  Sup.,  1899)   56  Pac.  577. 

(120) 


Ch.  4]  RIGHT  OF  WAY.  §  67 

session  of  any  settler  on  the  public  domain,  the  party  com- 
.mitting  such  injury  or  damage  shall  be  liable  therefor  to 
the  party  injured.31  It  is  held  that  this  proviso  does  not 
grant  rights  of  way  where  none  existed  before,  nor  confer 
additional  rights  upon  owners  of  ditches  subsequently  con- 
structed. An  appropriator  cannot,  as  against  a  subsequent 
homestead  settler,  enter  upon  land  in  the  possession  of  the 
latter,  for  the  purpose  of  changing  his  point  of  diversion,  or 
shifting  the  line  of  his  ditch,  and  constructing  new  water- 
ways, without  the  settler's  consent.32  A  person  in  possession 
of  public  land,  who  has  made  improvements  thereon,  but 
has  taken  no  steps  to  secure  title  to  the  land,  is  not  entitled 
to  compensation  for  any  of  the  land  taken  or  injured  by 
the  construction  of  an  irrigating  ditch  by  another,  but  the 
most  he  can  claim  is  compensation  for  injury  or  damage  to 
Ms  improvements,  caused  by  the  construction  of  the  ditch.33 
A  right  of  way  for  an  irrigating  ditch  on  the  public  domain 
vests  only  upon  the  completion  of  the  work,  and  a  compli- 
ance, on  the  part  of  the  ditch  owner,  with  the  local  laws, 
customs,  etc.,  although  such  right  attaches  as  fast  as  the 
•ditch  is  constructed.34 

£    67.    Right   of  Entry  for  Construction  and    Maintenance  of 
Ditch. 

The  right  of  way  across  the  land  of  another  for  an  irri- 
gating ditch  will  necessarily  include  the  right  to  enter  upon 

si  Rev.  St.  U.  S.  §§  2339,  2340.     See  Jennison  v.  Kirk,  98  U.  S. 
453. 

32  McGuire  v.  Brown,  106  Cal.  660,  39  Pac.  1060. 

ss  Knoth  v.  Barclay,  8  Colo.  300,  6  Pac.  924.     See,  also,  Farmers' 
High  Line  Canal  &  Reservoir  Co.  v.  Moon,  22  Colo.  560,  45  Pac.  437. 

a*  Jarvis  v.  State  Bank  of  Ft.  Morgan,  22  Colo.  309,  45  Pac.  505. 

(121) 


§  67  LAW  OF  IRRIGATION.  [Ch.  4 

the  premises  for  the  purpose  of  constructing  the  ditch  or 
keeping  it  in  repair.  This  will  be  the  case,  however  the 
right  of  way  is  acquired, — whether  by  condemnation,  grant,, 
prescription,  or  otherwise.  Thus,  in  California,  it  is  held 
that  the  right  to  take  water  from  or  across  the  land  of  an- 
other for  use  on  the  premises  of  the  person  taking  it  is  an 
easement  founded  on  a  grant,  or  on  a  prescription  whicli 
presupposes  a  grant.  Such  an  easement  does  not  give  its 
owner  the  right  to  commit  a  trespass  upon  the  servient  tene- 
ment, nor  may  he  exercise  it  in  any  manner  which  happens 
to  suit  his  pleasure.  His  right  is  measured  by  the  terms  of 
his  grant,  or,  where  the  supposed  original  grant  does  not 
appear,  by  the  prescriptive  use.  His  right  includes,  how- 
ever, secondary  easements,  such  as  the  right  to  enter  upon 
the  servient  tenement,  and  make  repairs  to  his  ditch,  and  to- 
do  such  other  things  as  may  be  necessary  to  the  full  exer- 
cise of  his  right.  But  these  secondary  easements  must  be 
exercised  only  when  necessary,  and  in  such  a  reasonable 
manner  as  not  to  increase  needlessly  the  burden  upon  the 
servient  tenement.35 

If  a  landowner  permits  an  appropriator  of  water  to  enter 
his  inclosure  for  the  purpose  of  changing  his  point  of  di- 
version, and  to  construct  and  keep  up  a  dam  for  diverting 
water  for  a  number  of  years,  he  will  be  estopped  by  such 
acquiescence  from  thereafter  treating  the  appropriator  as 
a  trespasser,  and  denying  his  right  of  entry.36 

One  who  appropriates  water  from  a  stream  on  the  public 
domain  acquires,  as  against  a  subsequent  purchaser  from 
the  United  States  of  the  land  above  him  on  the  stream,  as 

35  Joseph  v.  Ager,  108  Gal.  517,  41  Pac.  422.  See,  also,  Hargrave 
v.  Cook,  108  Gal.  72,  41  Pac.  18. 

SB  Miller  v.  Douglas  (Ariz.,  1900)  60  Pac.  722. 

(122) 


Ch.  4]  RIGHT  OF  WAY.  §  67 

complete  and  perfect  a  right  to  maintain  his  ditch,  and 
have  the  water  flow  to,  in,  and  through  the  same,  as  though 
such  right  or  easement  had  vested  in  him  by  grant,  and  such 
right  carries  with  it  implied  authority  to  do  all  that  is  neces- 
sary to  secure  the  enjoyment  of  such  easement.  Thus, 
where  the  stream  has  become  obstructed,  so  as  to  prevent  the 
water  from  flowing  to  his  ditch,  the  appropriator  has  a  right, 
as  against  such  subsequent  purchaser,  to  enter  upon  the  land 
of  the  latter,  and  remove  the  obstructions  from  the  bed  of 
the  stream,  so  as  to  permit  the  water  to  continue  to  flow  in 
its  original  channel  to  the  head  of  his  ditch.  37 

A  prior  appropriator  of  water,  who  constructs  a  dam 
across  the  bed  of  a  stream  for  the  purpose  of  raising  its 
surface  to  a  level  which  will  cause  it  to  flow  to  the  head  of 
his  ditch,  does  not  thereby  acquire  such  an  exclusive  right 
in  the  bed  and  banks  of  the  stream,  as  far  as  the  slack  water 
extends  above  his  dam,  that  he  can  enjoin  a  subsequent  ap- 
propriator of  the  surplus  water  from  tapping  the  stream 
and  diverting  such  surplus  at  any  point  above  the  dam,  and 
below  the  head  of  the  slack  water,  provided  he  does  not 
thereby  interfere  with  the  rights  of  the  prior  appropria- 
tor. 38 

s?  Ware  v.  Walker,  70  Cal.  591,  12  Pac.  475.  In  Crisman  v.  Heid- 
erer,  5  Colo.  589,  it  was  held  that  the  owner  of  a  water  right  (in 
this  case  for  milling  purposes)  had  a  right  to  enter  the  bed  of  the 
stream  above  his  ditch,  and  to  remove  obstructions  preventing  the 
water  from  reaching  his  ditch,  and,  as  an  appropriator,  had  implied 
authority  to  do  all  that  should  become  necessary  to  secure  the  ben- 
efit of  his  appropriation,  and  might  acquire  an  easement  in  the 
adjoining  lands,  but  that  the  right  so  acquired  must  be  held  to  the 
narrowest  limits  compatible  with  the  enjoyment  of  the  principal 
easement,  that  is,  the  right  to  the  use  of  the  water. 

ss  Natoma  Water  &  Min.  Co.  v.  Hancock,  101  Cal.  42,  31  Pac.  112, 
35  Pac.  334. 

(123) 


§  68  LAW  OF  IRRIGATION.  [Ch.  5 


CHAPTER  V. 

LIABILITY  FOR  DAMAGES  CAUSED  BY  CONSTRUCTION  AND 
USE  OF  DITCHES. 

§  68.  General  Rules  as  to  Liability  of  Ditch  Owner  for  Damages. 

69.  Liability  of  Irrigation  Companies  Owning  Ditches. 

70.  The  Doctrine  of  Contributory  Negligence. 

71.  Bridging  Ditches  Crossing  Highways  and  Streets. 

:'    68.    General  Rules  as  to  Liability  of  Ditch  Owner  for  Damages. 

The  maintenance  and  use  of  an  irrigating  ditch  may  some- 
times occasion  injury  to  neighboring  landowners,  and  it  is 
therefore  important  to  inquire  how  far  the  irrigator  is  liable 
in  such  case.  The  injury  here  contemplated  is  injury  re- 
sulting from  the  use  of  the  ditch  as  a  conduit  for  water?  and 
not  such  injury  as  would  properly  be  considered  in  esti- 
mating damages  in  condemnation  proceedings  to  secure  a 
right  of  way. 

We  observe,  first,  that  no  recovery  can  be  had  for  dam- 
ages incident  to  the  construction,  existence  and  maintenance 
of  an  irrigating  ditch,  within  the  scope  of  the  lawful  author- 
ity under  which  such  ditch  was  constructed  and  is  main- 
tained, or,  in  other  words,  where  a  ditch  exists  by  lawful 
authority,  its  owner  is  not  liable  for  damages  resulting  from 
its  mere  existence.1  Thus,  an  irrigating  ditch  in  a  city 
street  is  not  necessarily  a  nuisance.2  But  one  who  constructs 
or  maintains  an  irrigating  ditch  is  bound  to  exercise  rea- 

1  City  of  Denver  v.  Mullen,  7  Colo.  345,  3  Pac.  693 ;  Platte  &  D. 
Ditch  Co.  v.  Anderson,  8  Colo.  131,  6  Pac.  515;  Walley  v.  Platte  & 
D.  Co.,  15  Colo.  579,  26  Pac.  129;   Bliss  v.  Grayson  (Nev.,  1899)  56 
Pac.  231. 

2  City  of  Denver  v.  Mullen,  7  Colo.  345,  3  Pac.  693 ;   Platte  &  D. 

(124) 


Ch.5]  LIABILITY    FOR    DAMAGES.  §   68 

sonable  care  to  prevent  injury  to  other  persons  from  such 
ditch,  and  he  will  be  liable  for  all  damages  resulting  to 
others  from  his  negligence  or  unskilfulness  in  the  construc- 
tion, whether  in  planning  or  in  actual  construction,  or  in 
the  maintenance  or  use  of  the  ditch.3  Thus,  the  owner  of 
an  irrigating  ditch  is  bound  to  keep  it  in  good  repair,  and  is 
liable  for  all  damages  caused  by  his  failure  to  do  so.4  So, 
also,  he  is  bound  to  take  proper  precautions  in  the  construc- 
tion of  his  ditch  to  prevent  water  therefrom  from  flowing 

Ditch  Co.  v.  Anderson,  8  Colo.  131,  6  Pac.  515.  Where  an  irrigation 
company  constructed  a  canal  through  land  subsequently  included 
in  a  city,  and  maintained  such  canal  some  years  before  and  after 
the  incorporation  of  the  city,  whose  officials  recognized  the  exist- 
ence of  the  canal,  and  received  taxes  thereon,  and  extensive  works 
had  been  erected  on  account  of  the  canal,  and  it  appeared  that  the 
canal  could  be  sunk  below  the  surface  of  the  street,  and  covered 
up,  so  as  not  to  be  an  obstruction  thereto,  it  was  held,  in  an  action 
by  the  city  to  enjoin  the  maintenance  of  the  canal,  and  to  abate  it 
as  a  nuisance,  that  a  decree  ordering  it  to  be  filled  was  error.  Fres- 
no v.  Fresno  Canal  &  Irr.  Co.,  98  Cal.  179,  32  Pac.  943. 

sChidester  v.  Consolidated  Ditch  Co.,  59  Cal.  197;  Greeley  Irr. 
Co.  v.  House,  14  Colo.  549,  24  Pac.  329;  Old  v.  Keener,  22  Colo.  6,. 
43  Pac.  127;  Catlin  Land  &  Canal  Co.  v.  Best,  2  Colo.  App.  481,  31 
Pac.  391;  Consol.  Home  Supply  Ditch  &  Reservoir  Co.  v.  Hamlin,. 
6  Colo.  App.  341,  40  Pac.  582;  Arave  v.  Idaho  Canal  Co.  (Idaho,, 
1896)  46  Pac.  1024;  Kearney  Canal  &  Water  Supply  Co.  v.  Akey- 
son,  45  Neb.  635,  63  N.  W.  921;  Shields  v.  Orr  Extension  Ditch  Co.,. 
23  Nev.  349,  47  Pac.  194;  Clear  Creek  Land  &  Ditch  Co.  v.  Kilkenny,  5 
Wyo.  38,36  Pac.  819.  See,  also,  Richardson  v.  Kier,  34  Cal.  63,  37  CaL 
263,  in  which  the  ditch  involved  was  not  an  irrigating  ditch.  A  per- 
son irrigating  his  land  is  subject  to  the  maxim  "sic  u'tere  tuo  ut 
alienum  non  laedas,"  and  he  will  be  responsible  for  injuries  caused 
to  others  by  his  negligence  or  unskilfulness,  or  those  willfully  in- 
flicted in  the  exercise  of  his  right  of  irrigating  his  land.  But  an 
action  cannot  be  maintained  against  him  for  the  reasonable  exer- 
cise of  his  right,  although  an  annoyance  or  injury  may  thereby  be- 
occasioned  to  others.  Gibson  v.  Puchta,  33  Cal.  310. 

*  Catlin  Land  &  Canal  Co.  v.  Best,  2  Colo.  App.  481,  31  Pac.  391; 

(125) 


§  69  LAW  OF  IRRIGATION.  [Ch.  5 

over  the  land  of  another,  to  his  injury.  Thus,  where  a  land 
owner  permitted  water  from  his  irrigating  ditch  to  per- 
colate to  and  injuriously  saturate  the  land  of  his  neighbor, 
when  he  could  easily  have  prevented  such  injury  by  proper 
drains,  it  was  held  that  he  was  liable  for  the  injury  so 
caused,  and  that  its  continuance  might  be  enjoined.6 

In  an  action  against  a  ditch  owner  to  recover  damages 
for  injuries  caused  by  the  negligence  of  the  defendant  in 
maintaining  the  ditch,  the  burden  is  on  the  plaintiff  to 
show  that  such  injury  was  caused  by  the  defendant's  negli- 
gence, and  also  the  amount  of  such  damage  or  the  value  of 
the  property  destroyed  by  such  negligence.  The  question 
of  negligence  is  for  the  jury.6 

§    69.    Liability  of  Irrigation  Companies  Owning  Ditches. 

The  principles  stated  in  the  preceding  section  apply 
equally,  whether  the  irrigating  ditch  is  owned  by  an  indi- 
vidual or  by  a  company.  The  law  requires  canal  companies 
to  use  reasonable  skill,  judgment,  and  care  in  the  construc- 
tion and  maintenance  of  their  ditches,  and  such  companies 
will  be  liable  for  damages  caused  by  their  failure  to  per- 
form their  duty  in  this  respect.7  Thus,  a  ditch  company 

Kearney  Canal  &  Water  Supply  Co.  v.  Akeyson,  45  Neb.  635,  63  N. 
W.  921;  Shields  v.  Orr  Extension  Ditch  Co.,  23  Nev.  349,  47  Pac. 
194;  Thomas  v.  Blaisdell  (Nev.,  1899)  58  Pac.  903.  The  grantee  of 
an  easement  for  an  irrigating  ditch  is  bound  to  keep  the  ditch  in 
repair.  Bean  v.  Stoneman,  104  Cal.  49,  37  Pac.  777,  38  Pac.  39. 

s  Parker  v.  Larsen,  86  Cal.  236,  24  Pac.  989.  See,  also,  Boynton 
v.  Longley,  19  Nev.  69,  6  Pac.  437. 

6  Greeley  Irr.  Co.  v.  House,  14  Colo.  549,  24  Pac.  329. 

'  Jenkins  v.  Hooper  Irr.  Co.,  13  Utah,  100,  44  Pac.  829 ;  Lisonbee 
v.  Monroe  Irr.  Co.,  18  Utah,  343,  54  Pac.  1009.  See,  also,  Weider- 
kind  v.  Tuolumne  County  Water  Co.,  65  Cal.  431,  4  Pac.  415.  An 
(126) 


Oh.  5]  LIABILITY    FOR    DAMAGES.  §   69 

is  bound  to  conduct  its  surplus  water,  in  suitable  ditches, 
back  to  its  natural  channel,  when  practicable,  and  to  control 
and  dispose  of  such  water  so  that  it  will  not  injure  the  prop- 
erty of  others,  and  will  be  liable  for  damages  caused  by  its 
failure  to  do  so.8  A  ditch  company  cannot  gain  a  pre- 
scriptive right  to  be  negligent,  nor  can  it  excuse  its  negli- 
gence in  the  management  of  its  ditch  by  showing  that  other 
companies  manage  their  ditches  in  the  same  manner.9 

A  ditch  company  is  not  an  insurer  against  all  damages 
from  its  ditch,  without  regard  to  the  question  of  negligence, 
but  is  liable  only  when  negligent.10  Such  companies  are 
required  to  anticipate  and  prepare  to  meet  only  such  emer- 
gencies as  may  reasonably  be  expected  to  arise  in  the  course 
-of  nature.  Thus,  they  are  not  required  to  prepare  for 
:storms  of  such  unusual  violence  as  to  surprise  cautious  and 
reasonable  men.11  But  where  a  ditch  company  is  grossly 
negligent  in  attempting  to  carry  water  beyond  the  capacity 
of  its  ditch,  it  cannot  escape  liability  for  damages  caused 
by  a  washout,  on  the  ground  that  such  damage  was  the  re- 
sult of  unavoidable  accident,  as  by  the  burrowing  of 
gophers  in  the  banks  of  the  canal.12  ISTor  can  a  ditch 

irrigation  company  is  bound  to  so  construct  its  works  as  not  to  tres- 
pass upon  the  rights  of  adjacent  landowners,  and  its  agents  or 
servants  committing  such  wrong  are  also  personally  liable.  Bates 
v.  Van  Pelt,  1  Tex.  Civ.  App.  185,  20  S.  W.  949.  A  city  is  liable 
for  injuries  caused  by  its  negligence  in  the  use  of  an  irrigating 
ditch  controlled  by  it.  Levy  v.  Salt  Lake  City,  5  Utah,  302,  16  Pac. 
598. 

s  Lisonbee  v.  Monroe  Irr.  Co.,  18  Utah,  343,  54  Pac.  1009. 

»  Jenkins  v.  Hooper  Irr.  Co.,  13  Utah,  100,  44  Pac.  829. 

10  King  v.  Miles  City  Irr.  Ditch  Co.,  16  Mont.  463,  41  Pac.  431. 

11  Lisonbee  v.  Monroe  Irr.  Ditch  Co.,  18  Utah,  343,  54  Pac.  1009. 

12  Greeley  Irr.  Co.  v.  House,  14  Colo.  549,  24  Pac.  329.     See,  also, 
€hidester  v.  Consolidated  Ditch  Co.,  59  Cal.  197. 

(127) 


§  70  LAW  OF  IRRIGATION.  [CIi.  5 

company,  by  a  contract  releasing  it  from  liability  for  dam- 
ages caused  by  unavoidable  accidents,  exempt  itself  from 
liability  for  damage  resulting  from  its  gross  and  continued 
negligence.13  In  an  action  against  a  ditch  company,  formed! 
by  the  consolidation  of  two  pre-existing  companies,  to  re- 
cover for  damage  caused  by  a  ditch  constructed  by  one  of 
such  companies,  the  plaintiff  is  required  to  prove  by  which 
company  the  ditch  in  question  was  constructed.14 

In  an  action  to  abate  an  irrigation  ditch  owned  by  an 
irrigating  company,  the  company  is  a  necessary  party,  and 
although  an  officer  of  the  company  is  personally  liable  for 
the  tort  in  so  placing  the  ditch  as  to  injure  adjacent  prop- 
erty, it  is  error  to  order  the  filling  of  the  ditch  in  an  action 
against  him  for  the  tort,  and  to  compel  the  filling  of  the 
ditch. 15 

§    70.    The  Doctrine  of  Contributory  Negligence. 

As  a  general  rule,  it  is  the  duty  of  the  ditch  owner  to  pre- 
vent injuries  to  other  persons  from  his  ditch,  and  not  the 
duty  of  such  other  persons  to  protect  themselves  therefrom. 
It  seems  that  where  the  injury  occurs  unexpectedly,  or  is 
transitory,  the  landowner  should  go  to  some  trouble  to  avoid 
or  lessen  the  damage,  if  this  can  be  done  by  some  tempo- 
rary expedient,  or  at  slight  expense;  but  where  the  ditch 
owner,  with  full  knowledge  of  the  danger,  negligently  per- 
mits the  injury  to  occur  and  continue,  when  he  could  have 
prevented  it,  he  cannot  escape  liability  on  the  ground  that 
the  landowner  might,  at  slight  expense,  have  prevented  the 

is  Catlin  Land  &  Canal  Co.  v.  Best,  2  Colo.  App.  481,  31  Pac.  391. 
I*  Colorado  Consolidated  Land   &   Water  Co.  v.   Morris,   1   Colo. 
App.  401,  29  Pac.  302. 

in  Bates  v.  Van  Pelt,  1  Tex.  Civ.  App.  185,  20  S.  W.  949. 

(128) 


Ch.  5]  LIABILITY    FOR    DAMAGES.  §   71 

damage.  In  such  case,  no  duty  rests  upon  the  latter  to  avoid 
the  consequences  of  the  ditch  owner's  negligence,  and  the 
doctrine  of  contributory  negligence  does  not  apply.  le 

§    71.    Bridging  Ditches  Crossing  Highways  and  Streets. 

•  In  several  states,  the  owners  of  ditches  crossing  public 
highways  are  required  by  statute  to  keep  such  highways 
open  and  safe  for  travel  by  the  construction  of  proper 
bridges  over 'their  ditches.  Such  a  provision  does  not  re- 
quire a  ditch  owner  to  cover  a  ditch  running  parallel  with 
a  highway,  but  becomes  applicable  only  where  the  ditch 
crosses  the  highway,  or  so  encroaches  upon  it  as  to  interfere 
with  travel.17  And  it  has  been  held  that  a  municipal 
corporation,  which  accepts  the  dedication  of  streets  across 
which  a  ditch  has  been  previously  located  and  a  right  of 
way  acquired,  takes  the  same  subject  to  the  prior,  rights- 
of  the  owners  of  the  ditch,  and  that  the  duty  to  construct 
bridges,  whenever  and  wherever  the  public  necessity  and 
convenience  may  require,  and  to  keep  the  sdme  in  repair,, 
devolves  upon  the  city,  and  not  upon  the  ditch  owners.  18 

isMcCarty  v.  Boise  City  Canal  Co.,  2  Idaho,  225,  10  Pac.  623; 
Shields  v.  Orr  Extension  Ditch  Co.,  23  Nev.  349,  47  Pac.  194. 

17  Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Westlake,  23  Colo. 
26,  46  Pac.  134. 

is  City  of  Denver  v.  Mullen,  7  Colo.  345,  3  Pac.  693. 

(129) 


§  72  LAW  OF  IRRIGATION.  [Ch.  6 


CHAPTER  VI. 

PROPERTY  IN  WATER  RIGHTS  AND  DITCHES. 

§  72.  General  Doctrine  as  to  Property  in  Water  Rights. 

73.  Water  Rights  as  Appurtenances  to  Land. 

74.  Property  in  Ditches  and  Canals. 

75.  Co-ownership  of  Ditches  and  Water  Rights. 

76.  Taxation  of  Ditches  and  Water  Rights. 

5  72.    General  Doctrine  as  to  Property  in  Water  Eights. 

That  water  and  water  rights  are  of  the  greatest  importance 
.-and  value  in  regions  where,  without  the  use  of  water,  the 
land  itself  would  be  unproductive  and  worthless,  is  at  once 
apparent.  It  will  be  pertinent,  therefore,  to  inquire  how 
.far  water  and  the  right  to  its  use  may  be  considered  as 
property,  and  what  is  their  nature,  respectively,  as  property. 
As  to  property  in  water  itself,  we  observe  that  in  several  of 
the  arid  states  the  water  of  all  natural  streams  not  already 
appropriated  is  declared  by  the  state  constitution  to  be  the 
property  of  the  public,  subject  to  appropriation  by  private 
individuals.  l  Ordinarily,  running  water,  so  long  as  it  con- 
tinues to  flow  in  its  natural  course,  is  not,  and  cannot  be 
made,  the  subject  of  private  ownership,  except  in  so  far  as 
it  is  regarded  as  a  part  of  the  land  by  or  through  which  the 
stream  flows.  There  is  no  distinct  and  separate  ownership 
in  the  corpus  of  the  water  itself.  2  Thus,  it  has  been  held 
in  a  California  case  that,  although  an  appropriator  of  water 

1  See  post,  §  119. 

2  See  Kidd  v.  Laird,  15  Cal.  161;  Bear  Lake  &  River  Waterworks 

6  Irr.  Co.  v.  Ogden  City,  8  Utah,  494,  33  Pac.  135. 

(130) 


Ch.  6]  PROPERTY  IN  WATER  RIGHTS.  §  72 

by  means  of  a  ditch  leading  from  a  natural  stream  may  be 
entitled  to  the  undiminished  flow  of  the  stream,  the  water 
in  the  stream  above  his  ditch  is  not  his  personal  property, 
but  a  part  of  the  realty,  though  it  may  be  personal  property 
after  it  has  passed  into  the  ditch;  and  hence  the  appropria- 
tor  cannot  maintain  an  action  for  the  value  of  water  as  for 
personal  property  sold  and  delivered,  against  one  who,  with- 
out his  consent,  has  diverted  the  stream  above  the  head  of 
his  ditch.  3  As  conceded  in  the  case  just  stated,  water  which 
the  appropriator  has  taken  from  its  natural  channel,  and 
confined  in  his  works,  may  be  personal  property.  Thus,  it 
has  been  held  that  water  in  the  pipes  of  the  distributing 
system  of  a  city,  used  by  the  inhabitants  for  irrigation  and 
other  purposes,  is  personal  property;  the  ownership  in  such 
case  being  in  the  water  itself,  and  not  merely  in  the  right 
to  its  use.4 

But  although  there  is  no  specific  private  property  in  run- 
ning water  itself,  it  is  well  settled  that  the  right  to  the  use 
of  water  for  irrigation,  acquired  by  priority  of  appropria- 
tion, is  property,  and  is  subject  to  the  usual  incidents  of 
property,  and  will  be  protected  as  such.  5  A  water  right  is 
property,  within  the  constitutional  provision  that  private 
property  shall  not  be  taken  or  damaged  for  a  public  or  pri- 
vate use  without  just  compensation.6  A  person  who  has 

s  Parks  Canal  &  Min.  Co.  v.  Hoyt,  57  Cal.  44. 

*  Bear  Lake  &  River  Waterworks  &  Irr.  Co.  v.  Ogden  City,  8 
Utah,  494,  33  Pac.  135. 

"•Union  Colony  v.  Elliott,  5  Colo.  371;  Ft.  Morgan  Land  &  Canal 
Co.  v.  South  Platte  Ditch  Co.,  18  Colo.  1,  30  Pac.  1032;  Nichols  v. 
Mclntosh,  19  Colo.  22,  34  Pac.  278;  Cash  v.  Thornton,  3  Colo.  App. 
475,  34  Pac.  268;  Frank  v.  Hicks,  4  Wyo.  502,  35  Pac.  475,  1025. 

6  Armstrong  v.  Larimer  County  Ditch  Co.,  1  Colo.  App.  49,  27  Pac. 
235;  Fisher  v.  Bountiful  City  (Utah,  1899)  59  Pac.  520. 

(131) 


§  73  LA-W  OF  IRRIGATION.  [Ch.  6 

acquired  a  right  to  the  use  of  water  for  irrigation  by  appro- 
priation can  be  deprived  thereof  only  by  his  voluntary  act, 
by  forfeiture,  or  by  operation  of  law.  7 

In  its  nature,  a  water  right  or  an  interest  in  a  water  right 
and  ditch  is  real  estate,  8  and  a  perpetual  right  to  have  a 
certain  quantity  of  water  flow  through  an  irrigating  ditch 
is  a  freehold  estate.0  So,  also,  the  right  of  a  riparian  proprie- 
tor,.as  such,  to  the  use  of  water  flowing  by  his  land,  is  "identi- 
fied with  the  realty,  and  is  a  real  and  corporeal  heredit- 
ament."1 And  the  right  of  an  irrigation  company  to  have 
the  water  flow  in  the  stream  to  the  head  of  its  ditch  is  an 
incorporeal  hereditament  appurtenant  to  the  ditch,  and  is 
coextensive  with  the  right  to  the  ditch  itself.  11 
£  73.  Water  Rights  as  Appurtenances  to  Land. 

It  is  sometimes  important  to  determine  when  or  whether 
water  rights  are  appurtenances  to  the  land  in  connection 
with  which  they  are  used,  or  were  acquired.  This  is  espe- 
cially the  case  in  connection  with  conveyances  of  water 

7  Fisher  v.  Bountiful  City  (Utah,  1899)  59  Pac.  510.  See,  also, 
Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac.  278. 

s  Lower  Kings  River  Water  Ditch  Co.  v.  Kings  River  &  Fresno 
Canal  Co.,  60  Cal.  408;  Hayes  v.  Fine,  91  Cal.  391,  27-  Pac.  772;  Fu- 
dickar  v.  East  Riverside  Irr.  Dist,  109  Cal.  29,  41  Pac.  1024;  Trav- 
elers' Ins.  Co.  v.  Childs,  25  Colo.  360,  54  Pac.  1020;  Child  v.  Whit- 
man, 7  Colo.  App.  117,  42  Pac.  601 ;  Ada  County  Farmers'  Irr.  Co.  v. 
Farmers'  Canal  Co.  (Idaho,  1898)  51 , Pac.  990;  Middle  Creek  Ditch 
Co.  v.  Henry,  15  Mont.  558,  39  Pac.  1054.  See,  also,  Quigley  v. 
Birdseye,  11  Mont.  439,  28  Pac.  741. 

9  Wyatt  v.  Larimer  &  Weld  Irr.  Co.,  18  Colo.  298,  33  Pac.  144. 

10  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674. 

11  Lower  Kings  River  Water  Ditch  Co.  v.  Kings  River  &  Fresno 
Canal  Co.,  60  Cal.  408.     This  was  an  action  'to  recover  damages  for 
the  diversion  of  water  from  the  plaintiff's  ditch.     The  ditch  was 
situated  partly  in  Fresno  and  partly  in  Tulare  county;  the  head  of 

(132) 


Ch.  6]  PROPERTY    IN    WATER    RIGHTS.  §  73 

rights ;  for,  as  will  be  seen  later,  a  conveyance  of  land  will 
ordinarily  carry  with  the  land  all  water  rights  appurtenant 
thereto.  12  In  the  discussion  of  water  rights,  the  terras 
"appurtenant"  and  "appurtenances"  appear  in  some  in- 
stances to  have  been  used  loosely  by  the  courts  where  their 
precise  meaning  was  not  directly  involved  in  the  question 
to  be  decided.  It  is  important  to  observe  that  "appurte- 
nant" does  not  mean  "inseparable,"  but  that  water  rights, 
although  appurtenant  to  land,  may  nevertheless  exist  as 
entirely  independent  and  distinct  rights  of  property,  and, 
as  such,  be  conveyed  apart  from  the  land.  13  Owing  to  a 
failure  to  note  this  distinction,  and  considering  also  a  water 
right  as  a  corporeal  thing,  which  could  not,  as  such,  be  ap- 
purtenant to  land,  the  court  of  appeals  of  Colorado,  in  a 
recent  decision,  held  that  water  rights  are  not  appurte- 
nances.14 This  decision  is  believed  to  be  the  only  authority 
for  the  proposition  that  an  appropriator's  water  right  is  a  cor- 
poreal thing,  and  the  further  proposition  that  it  may  not  be- 
come appurtenant  to  land.15  On  these  propositions,  the  court 
appears  to  have  been  plainly  wrong,  and  its  ruling  was  exam- 
ined and  disapproved  by  the  supreme  court  of  Wyoming  in  a 

the  ditch  and  the  point  of  defendant's  diversion  and  the  plaintiff's 
place  of  business  being  in  Fresno  county.  The  action  was  brought 
in  Tulare  county.  This  was  held  proper,  the  court  holding  the  law 
to  be  as  stated  in  the  text,  and  therefore  the  injury  affected  the 
ditch  as  a  whole,  and,  since  the  ditch  lay  in  both  counties,  the 
action  might  have  been  brought  in  either. 

12  See  post,  §  78. 

is  Frank  v.  Hicks,  4  Wyo.  502,  35  Pac.  475,  1025. 

u  Bloom  v.  West,  3  Colo.  App.  212,  32  Pac.  846. 

is  In  Oppenlander  v.  Left  Hand  Ditch  Co.,  18  Colo.  142,  31  Pac. 
854,  the  question  whether  water  rights  may  become  appurtenances 
was  raised,  but  left  undecided. 

(133) 


§  73  LAW  OF  IRRIGATION.  [Ch.  6 

case  in  which  the  question  of  water  rights  as  appurtenances 
was  exhaustively  discussed.16  This  case  has  since  been  follow- 
ed by  the  supreme  court  of  Colorado,17  and  it  may  now  be  re- 
garded as  settled  law  that  a  water  right  acquired  by  appro- 
priation is  appurtenant  to  the  land  upon  which  the  water  is 
used.  18  And  the  ditch  or  other  conduit  for  the  water  is 
attached  to  the  land  either  as  appurtenant  or  incident  thereto, 
and  necessary  to  its  beneficial  enjoyment,  and  is  therefore 
part  and  parcel  of  the  realty.19 

The  fact  that  the  land  to  which  the  water  is  conveyed 
by  the  appropriator  is  unsurveyed  public  land  does  not  pre- 
vent the  water  from  becoming  appurtenant  thereto,  where 
the  appropriator  is  not  a  trespasser  on  the  land,  but  a  right- 
ful occupant.  20  But  the  use  of  water  by  a  trespasser  upon 
the  land  of  another  does  not  make  such  water  appurtenant 
to  the  land  upon  which  it  is  wrongfully  used.  21  It  does  not 
follow  from  this,  however,  that  the  use  of  water  upon  land 
to  which  it  is  already  appurtenant,  by  one  who  is  a  tres- 
passer thereon,  will  give  him  such  a  right  to  the  water  as 
that  he  may  thereafter  divert  it  from  the  land,  or,  upon  being 
ejected  therefrom,  convey  to  a  stranger  a  legal  title  to  the 

ie  Frank  v.  Hicks,  4  Wyo.  502,  35  Pac.  475,  1025. 

i^Gelwicks  v.  Todd,  24  Colo.  494,  52  Pac.  788.  See,  also,  Arnett 
v.  Linhart,  21  Colo.  188,  40  Pac.  355. 

is  See  cases  cited  in  note  to  §  78,  post.  See,  also,  Fitzell  v. 
Leaky,  72  Cal.  477,  14  Pac.  198.  For  extensive  discussion  of  the 
question  of  water  rights  as  appurtenances,  see  Smith  v.  Denniff 
(Mont.,  1900)  60  Pac.  398. 

is  Frank  v.  Hicks,  4  Wyo.  502,  35  Pac.  475,  1025.  See  Fitzell  v. 
Leaky,  72  Cal.  477,  14  Pac.  198. 

20  Ely  v.  Ferguson,  91  Cal.  187,  27  Pac.  587. 

21  Smith  v.  Logan,  18  Nev.  149,  1  Pac.  678. 
(134) 


Ch.  6]  PROPERTY    IN    WATER    RIGHTS.    '  §  74 

water  or  the  use  thereof.22  The  burden  of  proving  that  a 
water  right  and  ditch  are  appurtenant  to  land  rests  upon 
the  party  asserting  it.  23 

§    74.    Property  in  Ditches  and  Canals. 

An  irrigating  ditch  or  canal  is,  of  course,  property,  and 
will  ordinarily  constitute  a  part  of  the  land  across  or  through 
which  it  is  constructed.  It  is  to  be  noted  that  an  irrigating 
ditch,  as  property,  is  entirely  distinct  from  the  right  to  con- 
duct water  through  it.  The  ownership  of  the  ditch  and  that 
of  the  water  right  may  be,  and  often  is,  vested  in  the  same 
person,  but  one  may  own  a  ditch  without  owning  a  water 
right,  and  vice  versa.  24  A  conspicuous  instance  of  this 
occurs  ^in  the  case  of  irrigation  through  the  agency  of  irri- 
gation companies,  where  the  company  owns  the  ditch,  and 
the  water  rights  usually  belong  to  the  private  consumers.25 
Ditches  and  canals,  being  property  existing  as  such  inde- 
pendently of  the  water  rights,  may  be  conveyed  separately 
from  such  rights,  the  conveyance  being  executed  with  the 
usual  formalities  required  in  the  case  of  any  sale  of  real 
estate.26  Mechanics'  liens  for  work  and  materials  furnished 
in  the  construction  or  maintenance  of  irrigating  ditches  may 
be  enforced  according  to  the  general  laws  governing  the  en- 

22  Alta  Land  &  Water  Co.  v.  Hancock,  85  Cal.  219,  24  Pac.  645,  20 
Am.  St.  Rep.  217. 

23  Smith  v.  Denniff   (Mont.,  1900)   60  Pac.  398. 

24  Clifford  v.  Larrien    (Ariz.,  1886)    11  Pac.  397;    McLear  v.  Hap- 
good,  85  Cal.  555,  24  Pac.  788;    Stocker  v.  Kirtley   (Idaho,  1900)   59 
Pac.  891. 

-3  See  post,  c.  13,  "Irrigation  Companies." 

20  The  conveyance  of  irrigating  ditches  will  be  considered  so  far 
as  necessary  in  connection  with  the  conveyance  of  water  rights. 
See  post,  §§  77-80. 

(135) 


§  75  LAW  OF  IRRIGATION.  [Ch.  6 

forcement  of  such  liens.27  The  owner  of  an  irrigating  ditch, 
like  the  owner  of  any  other  property,  may  maintain  an  action 
for  an  injury  to  the  ditch,  28  the  measure  of  damages  for 
the  destruction  of  such  ditch  being  the  difference  in  the  value 
of  the  land  without  and  with  the  ditch.29  In  several  states 
malicious  injuries  to  irrigating  ditches  are,  by  statute,  made 
punishable  as  misdemeanors.  30 
§  75.  Co-ownership  of  Ditches  and  Water  Rights. 

Several  persons  may  together  construct  or  own  a  dam, 
headgate  or  ditch,  to  be  used  for  the  diversion  or  conveyance 
of  water,  in  which  case  they  are,  of  course,  tenants  in  com- 
mon of  the  dam,  headgate  or  ditch.  But  their  common 
ownership  of  the  means  of  diversion  or  conveyance  does  not 
necessarily  involve  a  common  right  to  the  water  diverted 
or  conveyed,  for,  as  we  have  seen,  the  ownership  of  the 
water  right  and  that  of  the  means  of  diversion  or  convey- 
ance may  be  entirely  distinct.  Several  appropriators,  whose 
appropriations  date  from  different  times,  may  use  the  same 
ditch  or  headgate  without  losing  their  respective  priorities. 
Such  use,  in  the  absence  of  an  agreement  to  that  effect,  does 
not  result  in  a  merger  of  their  rights,  but  the  same  irrigat- 
ing ditch  may  have  t\vo  or  more  priorities  belonging  to  the 
same  party,  or  to  different  parties.  31 

2-  See  Atlantic  Trust  Co.  v.  Woodbridge  Canal  &  Irr.  Co.,  79  Fed. 
39,  501,  86  Fed.  975;  Jarvis  v.  State  Bank,  22  Colo.  309,  45  Pac.  505; 
Greer  v.  Cache  Val.  Canal  Co.  (Idaho,  1894)  38  Pac.  653;  Nelson  v. 
Clerf,  4  Wash.  405,  30  Pac.  716. 

as  Jacob  v.  Lorenz,  98  Cal.  332,  33  Pac.  119.  One  may  own  an 
irrigating  ditch  without  owning  a  water  right,  and  may  protect  it 
from  injury.  Stocker  v.  Kirtley  (Idaho,  1900)  59  Pac.  891. 

29  Denver,  T.  &  Ft.  W.  R.  Co.  v.  Dotson,  20  Colo.  304,  38  Pac.  322. 

3°  Consult  statutes  in  Appendix. 

si  Rominger  v.  Squires,  9  Colo.  327,  12  Pac.  213 ;   Farmers'  High 

(136) 


Ch.  6]  PROPERTY    IN    WATER    RIGHTS.  §   75 

Ordinarily,  where  two  or  more  persons  together  construct 
an  irrigation  .ditch,  and  appropriate  water  by  means  of  such 
ditch,  they  become  tenants  in  common  of  the  ditch  and  water 
rights  also;  the  respective  quantities  of  water  to  which  each 
is  entitled  being  determined  by  the  terms  of  the  contract  be- 
tween the  parties,  and  their  mutual  rights  and  obligations 
being  determined  by  the  general  law  of  cotenancy.  32  In 
such  case,  the  possession  and  use  of  the  ditch  and  water  by 
one  of  the  tenants  in  common  is  that  of  his  cotenants,  and  is 
presumed  to  be  not  adverse  to,  but  in  maintenance  of  their 
rights,  and  in  accordance  with  his  own  right  as  a  tenant 
in  common.  33  Tenants  in  common  of  an  irrigating  ditch 
are  equally  bound  to  keep  it  in  repair,  and  where,  through 
the  failure  of  one  of  them  to  repair  the  ditch,  the  land  of 
the  other  is  overflowed,  the  latter  has  no  right  to  fill  up  the 
ditch.  34 

Line  Canal  &  Reservoir  Co.  v.  Southworth,  13  Colo.  Ill,  21  Pac. 
1028;  Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac.  278;  Patterson  v. 
Brown  &  Campion  Ditch  Co.,  3  Colo.  App.  511,  34  Pac.  769.  See, 
also,  Fitzell  v.  Leaky,  72  Cal.  477,  14  Pac.  198. 

saLytle  Creek  Water  Co.  v.  Perdew,  65  Cal.  447,  4  Pac.  426;  San- 
ta Paula  Water  Works  v.  Peralta,  113  Cal.  38,  45  Pac.  168;  Schill- 
ing v.  Rominger,  4  Colo.  100;  Tucker  v.  Jones,  8  Mont.  225,  19  Pac. 
571;  Moss  v.  Rose,  27  Ore.  595,  41  Pac.  666;  Smith  v.  North  Can- 
yon Water  Co.,  16  Utah,  194,  52  Pac.  283. 

ss  Moss  v.  Rose,  27  Ore.  595,  41  Pac.  666;  Smith  v.  North  Canyon 
Water  Co.,  16  Utah,  194,  52  Pac.  283. 

34  Moss  v.  Rose,  27  Ore.  595,  41  Pac.  666.  In  this  case,  the  par- 
ties were  tenants  in  common  of  a  ditch  across  defendant's  land, 
and  through  the  plaintiffs'  neglect  to  keep  the  ditch  in  repair,  the 
defendant's  land  was  overflowed,  whereupon  he  filled  the  ditch, 
thus  cutting  off  the  water  from  the  plaintiffs'  land,  for  which  in- 
jury he  was  held  liable.  The  court  held,  further,  that  "the  plain- 
tiffs will  be  allowed  to  appropriate  one-half  of  the  waters  diverted, 
and  required  to  bear  one-half  of  the  expense  of  maintaining  the 

(137) 


§   76  LAW  OF  IRRIGATION.  [Ch.  6 

§    76.    Taxation  of  Ditches  and  Water  Rights. 

Ditches  and  water  rights,  being  property,  are,  of  course, 
taxable,  in  the  absence  of  any  constitutional  or  statutory  pro- 
vision exempting  such  property  from  taxation.  In  several  of 
the  states  it  is  expressly  provided  that  ditches,  canals,  etc.,, 
used  for  irrigation  purposes,  shall  be  exempt  from  taxation, 
or  shall  not  be  separately  taxed.35  Thus,  in  Colorado  and 
Utah  the  constitution  provides  that  "ditches,  canals  and 
flumes  owned  and  used  by  individuals  or  corporations  for 
irrigating  lands  owned  by  such  individuals  or  corporations, 
or  the  individual  members  thereof,  shall  not  be  separately 
taxed,  so  long-  as  they  shall  be  owned  and  used  exclusively  for 
such  purpose." 3(J  In  the  absence  of  this  provision,  all 
canals  would  be  subject  to  separate  taxation.  3T  Under  this 
provision,  only  those  canals  which  are  exclusively  used  for 
irrigating  the  lands  owned  by  those  who  own  the  canals, 
either  in  whole  or  in  part,  are  relieved  from  separate  taxa- 
tion. The  ditches,  canals,  and  flumes  exempted  are  divisible 
into  three  general  classes :  ( 1 )  Those  owned  by  one  or 
more  individuals,  and  exclusively  used  for  irrigating  the 
lands  of  said  individuals,  or  the  lands  of  any  of  them;  (2) 
those  owned  by  a  corporation,  and  exclusively  used  for  irri- 

ditch  across  the  defendant's  lands,  and,  for  the  purpose  of  per- 
forming their  part  of  the  work,  they  must  have  the  right  of  entry 
upon  the  said  lands  of  defendant  along  the  banks  of  the  ditch.  And, 
in  case  of  the  default  of  either  party,  the  other  may  complete  the 
necessary  repairs,  and  thereupon  the  party  in  default  shall  be  lia- 
ble for  one-half  the  expense  thereof." 

33  See  constitutional  and  statutory  provisions  in  Appendix. 

se  Const.  Colo.  art.  10,  §  3;  Const.  Utah,  art.  13,  §  3;  Rev.  St. 
Utah  1898,  §  2503. 

37  Empire  Land  &  Canal  Co.  v.  Board  Com'rs  Rio  Grande  County, 
21  Colo.  244,  40  Pac.  449. 

(138) 


Ch.  6]  PROPERTY    IN    WATER    RIGHTS.  §   76 

gating  lands  belonging  to  the  corporation,  and  lands  belong- 
ing to  shareholders  of  the  corporation,  or  lands  of  the  cor- 
poration or  the  shareholders,  or  any  thereof;  and  (3)  those 
owned  in  part  by  a  corporation  and  partly  by  individuals,  and 
exclusively  used  for  irrigating  lands  belonging  to  the  cor- 
poration and  to  said  individual  owners,  or  the  lands  of  the 
corporation  or  said  individuals,  or  any  thereof.38  Although 
ditches,  etc.,  coming  within  the  scope  of  this  provision,  may 
not  be  separately  returned  for  taxation,  there  seems  to  be  no 
reason  why  they  may  not  be  indirectly  taxed  by  giving  to  the 
land  benefited  by  them  a  proportionately  increased  valua- 
tion. 

A  more  sweeping  provision  is  that  found  in  Nebraska, 
exempting  all  ditches,  etc.,  used  for  the  purpose  of  irriga- 
tion, from  all  taxation,  whether  for  state,  county,  or  munici- 
pal purposes.39  Under  a  statute  exempting  water  rights 
from  taxation  "in  all  cases  where  the  land  or  other  property 
upon  which  the  water  pertaining  to  such  rights  is  assessable 
for  taxation,"  but  providing  that,  in  making  the  assessment, 
the  assessor  shall  estimate^ the  increased  value  of  such  land 
or  other  property  caused  by  the  use  of  such  water,  water 
in  the  pipes  of  a  distributing  system  of  a  city  for  the  use 
of  its  inhabitants  is  not  exempt.40 

38  Empire  Land  &  Canal  Co.  v.  Board  Com'rs,  Rio  Grande  County, 
21  Colo.  244,  40  Pac.  449,  reversing  1  Colo.  App.  205,  28  Pac.  482. 

so    Consol.  St.  Neb.  1891,  §  2035. 

« Bear  Lake  &  River  Waterworks  &  Irr.  Co.  v.  Ogden  City,  8 
Utah,  494,  33  Pac.  135,  construing  2  Comp.  Laws  Utah  1888,  §  2784. 

(139) 


§   77  LAW  OF  IRRIGATION.  [Ch.  7 


CHAPTER  VII. 

TRANSFER  OF  WATER  RIGHTS. 

§  77.     Generally — Water     Right   may  be  Sold  or  Otherwise  Trans- 
ferred. 

78.  Conveyance  of  Water  Right  with  Land. 

79.  Conveyance  of  Water  Right  Separate  from  Land. 

80.  Formalities  of  Conveyance. 

81.  Contracts  and  Licenses  Affecting  Water  Rights. 

£    77.    Generally— Water  Right  may  be  Sold  or  Otherwise  Trans- 
ferred. 

Like  other  property,  a  water  right  may  be  sold  or  other- 
wise transferred.  An  appropriate!1  of  water  for  irrigation 
may  sell  the  right  to  all  or  a  portion  of  the  water  covered 
by  his  appropriation.  *  A  sale  by  the  appropriator  of  the 
right  to  use  a  portion  of  the  water  appropriated  by  him  for 
the  irrigation  of  his  land  does  not  indicate  that  he  has  ap- 
propriated more  water  than  he  actually  needed.  2  It  is  not 
necessary  that  a  purchaser  of  a  water  right  from  an  appro- 
priator should  use  the  water  for  the  purpose  for  which  it 
was  used  by  his  vendor,  but  the  purchase  may  be  for  an  en- 
tirely different  use.  Thus,  a  city  may  purchase,  for  munici- 
pal purposes,  a  priority  acquired  for  irrigation,  and  succeed 
to  the  rights  of  the  original  proprietor.  This  is  in  accord- 
ance with  the  general  principle  that  the  use  to  which  Avater 

i  Strickler  v.  City  of  Colorado  Springs,  16  Colo.  61,  26  Pac.  313; 
Ft.  Morgan  Land  &  Canal  Co.  v.  South  Platte  Ditch  Co.,  18  Colo.  1, 
30  Pac.  1032;  Middle  Creek  Ditch  Co.  v.  Henry,  15  Mont.  558,  39 
Pac.  1054;  Frank  v.  Hicks,  4  Wyo.  502,  35  Pac.  475,  1025. 

**Drake  v.  Earhart,  2  Idaho,  716,  23  Pac.  541. 

(140) 


Ch.  7]  TRANSFER   OF  WATER   RIGHTS.  §   77 

is  put  is  immaterial,  and  a  change  in  such  use  does  not  affect 
the  right.  3 

A  water  right  acquired  by  appropriation  may  be  sold  not 
only  after  it  has  been  perfected,  but  also  before  the  appro- 
priation is  complete,  and  while,  therefore,  the  right  is  as 
yet  unperfected;  that  is  to  say,  the  appropriator,  while  en- 
gaged in  making  his  appropriation,  may  sell  his  rights  so 
far  acquired  to  another,  although  they  are  not  yet  perfected, 
and  are  liable  to  forfeiture  in  case  he  or  his  successor  in  in- 
terest fails  to  prosecute  the  work  of  appropriation  to  com- 
pletion with  reasonable  diligence.  And  his  vendee,  by  com- 
pleting the  appropriation  with  reasonable  diligence,  may 
perfect  the  water  right  for  his  own  benefit.  Thus,  a  canal 
company  at  any  time,  while  prosecuting  its  work  of  construc- 
tion with  proper  diligence,  may  sell  and  dispose  of  such 
rights  as  it  may  have,  and  the  grantee  may  succeed  to  such 
rights  and  become  the  legal  successor  of  the  grantor ;  but, 
in  order  to  become  such,  the  grantee  must  succeed  in  the  same 
right,  and  the  prosecution  must  be  substantially  of  the  same 
enterprise.  That  is  to  say,  it  must  succeed  to  the  charter 
rights  of  the  grantor,  and  prosecute  the  enterprise  under  the 
same  franchise  and  in  accordance  with  the  statement  and 
certificate  of  its  organization.4  Where  the  work  of  appro- 
priation is  begun  and  abandoned,  all  incipient  rights  ac- 

s  Strickler  v.  City  of  Colorado  Springs,  16  Colo.  61,  26  Pac.  313, 
See,  also,  Springville  v.  Fullmer,  7  Utah,  450,  27  Pac.  577. 

One  who  has  appropriated  no  more  water  than  is  necessary  for 
the  irrigation  of  his  land  may  sell  a  portion  of  such  water  to  a  rail- 
way company  for  supplying  its  station.  Drake  v.  Earhart,  2  Idaho, 
716,  23  Pac.  541. 

See  ante,  §§  45,  53. 

*  Colorado  Land  &  Water  Co.  v.  Rocky  Ford  Canal,  etc.,  Co.,  3 
Colo.  App.  545,  34  Pac.  580. 

(141) 


§  78  LAW  OF  IRRIGATION.  [Ch.  7 

quired  are  forfeited,  and  revert  to  the  public,  and  cannot 
be  thereafter  sold  or  transferred.  5 

§    78.    Conveyance  of  Water  Right  with  Land. 

In  examining  the  question  of  the  transfer  of  water  rights, 
we  will  consider,  first,  the  transfer  of  such  rights  along  with 
the  land  in  connection  with  which  the  rights  exist,  or  the 
water  is  used.  That  a  water  right  and  the  land  in  such  case 
may  be  sold  together  would  seem  to  be  sufficiently  obvious. 
Thus,  the  right  of  a  riparian  proprietor,  as  such,  to  the  flow 
of  a  stream,  being  annexed  to  the  soil,  passes  with  it,  not 
as  an  easement  or  appurtenance,  but  as  part  and  parcel  of 
it.6  So,  also,  where  a  water  right  acquired  by  appropria- 
tion is  regarded  as  an  appurtenance  to  the  land  upon  which 
the  water  is  used,  a  conveyance  of  the  land  without  any  ref- 
erence to  the  water  right  will  pass  such  right  also  unless  it  be 
expressly  reserved  in  the  deed.7  And  a  conveyance  of  a 
ditch  by  means  of  which  water  is  appropriated  will  take  with 

••  Colorado  Land  &  Water  Co.  v.  Rocky  Ford  Canal,  etc.,  Co.,  3 
Colo.  App.  545,  34  Pac.  580. 

«Lux  v.  Haggin,  69  Cal.  255  10  Pac.  674;  Stanford  v.  Felt,  71  Cal. 
249,  16  Pac.  900;  Vernon  Irr.  Co.  v.  City  of  Los  Angeles,  106  Cal. 
237,  39  Pac.  762;  Rigney  v.  Tacoma  Light  &  Water  Co.,  9  Wash.  576, 
38  Pac.  147. 

-  California:  Cave  v.  Crafts,  53  Cal.  135;  Farmer  v.  Ukiah  Wa- 
ter Co.,  56  Cal.  11;  Coonradt  v.  Hill,  79  Cal.  587,  21  Pac.  1099; 
Crooker  v.  Benton,  93  Cal.  365,  28  Pac.  953;  Clyne  v.  Benicia  Wa- 
ter Co.,  100  Cal.  310,  34  Pac.  714;  Smith  v.  Corbit,  116  Cal.  587,  48 
Pac.  725.  See,  also,  Painter  v.  Pasadena  Land  &  Water  Co.,  91 
-Cal.  74,  27  Pac.  539. 

Montana:  Tucker  v.  Jones,  8  Mont.  225,  19  Pac.  571;  Sweetland 
v.  Olsen,  11  Mont.  27,  27  Pac.  339;  Smith  v.  Denniff  (Mont.,  1899) 
-57  Pac.  557,  60  Pac.  398. 

Oregon:  Simmons  v.  Winters,  21  Ore.  35,  27  Pac.  7;  Coventon 
<142) 


<}h.  7]  TRANSFER   OF   WATER   RIGHTS.  §   78 

it  the  water  right  as  an  appurtenance.8  So,  also,  a  reserva- 
tion of  an  interest  in  a  ditch  is  a  reservation  of  a  like  inter- 
est in  the  water  right  annexed  to  the  ditch.9 

In  Colorado  it  is  held  that  since  a  water  right  is  a  distinct 
subject  of  grant,  and  transferable  either  with  or  without 
the  land,  the  question  whether  a  deed  to  land  conveys  the 
water  right  depends  upon  the  intention  of  the  grantor,  which 
is  to  be  gathered  from  the  express  terms  oC  the  deed;  or 
when  the  deed  is  silent  as  to  the  water  right,  from  the  pre- 
sumption that  arises  from  the  circumstances,  and  whether 
.such  right  is  or  is  not  incident  to  and  necessary  to  the  bene- 
ficial enjoyment  of  the  land.  10  Where  the  water  right  is 
expressly  mentioned  as  a  part  of  the  subject  of  the  grant, 
it  will,  of  course,  pass  under  the  deed.  11  And  although  not 
mentioned  in  the  deed,  the  water  right  will  pass  as  an  ap- 

v.  Seufert,  23  Ore.  548,  32  Pac.  508;  Turner  v.  Cole,  31  Ore.  154,  49 
Pac.  971. 

Texas:  Toyaho  Creek  Irr.  Co.  v.  Hutchins  (Tex.  Civ.  App.,  1899) 
52  S.  W.  101. 

Utah:  Under  Rev.  St.  Utah,  1898,  §  1281,  water  rights  appur- 
tenant to  land  pass  by  a  conveyance  of  the  land  unless  expressly 
reserved  in  the  deed,  or  may  be  treated  as  personal  property,  and 
separately  conveyed.  Snyder  v.  Murdock  (Utah,  1899)  59  Pac.  91; 
Fisher  v.  Bountiful  City  (Utah,  1899)  59  Pac.  520. 

Wyoming:  Frank  v.  Hicks,  4  Wyo.  502,  35  Pac.  475,  1025;  Mc- 
Phail  v.  Forney,  4  Wyo.  556,  35  Pac.  773. 

s  Williams  v.  Harter,  121  Gal.  47,  53  Pac.  405;  Arnett  v.  Linhart, 
21  Colo.  188,  40  Pac.  355. 

»  Arnett  v.  Linhart,  21  Colo.  188,  40  Pac.  355.  In  this  case  it  was 
held  that  a  conveyance  of  land,  and  also  a  half  interest  in  a  ditch, 
operated  to  convey  a  half  interest  in  the  ditch  and  water  right,  and 
also  as  a  reservation  of  a  like  interest  in  both. 

10  Arnett  v.  Linhart,  21  Colo.  188,  40  Pac.  355;  Gelwicks  v.  Todd, 
24  Colo.  494,  52  Pac.  788;  Travelers'  Ins.  Co.  v.  Childs,  25  Colo.  360, 
54  Pac.  1020. 

11  Arnett  v.  Linhart,  21  Colo.  188,  40  Pac.  355. 

(143) 


§  79  LAW  OF  IRRIGATION.  [Ch.  7 

purtenance  to  the  land  when  this  appears  to  be  the  intention 
of  the  parties.  12 

A  right  to  conduct  water  across  the  land  of  another  for 
irrigation  passes  by  a  conveyance  of  the  land  irrigated  as 
an  appurtenance  thereto.  13  So,  also,  an  irrigating  ditch 
dug  across  the  land  of  another  is  an  appurtenance  to  the 
land  irrigated,  and  will  pass  with  it  upon  a  sale  thereof.  14 

§    79.    Conveyances  of  Water  Right  Separate  from  Land. 

In  the  preceding  section  we  found  that  a  water  right 
might  be  conveyed  along  with  the  land  in  connection  with 
which  it  exists,  or  the  water  is  used.  We  will  now  consider 
the  sale  of  such  right  separate  from  the  land.  As  has  been 
already  stated,  the  right  of  a  riparian  proprietor  to  the  flow 
.of  a  stream  of  water  over  his  land  is  annexed  to  the  soil  as 
an  incident  thereto,  and  is  considered  part  and  parcel  of 
it,  but  this  right  may  nevertheless  be  severed  from  the  land 
by  grant,  condemnation  or  prescription.  15  This  intimate 
connection  of  the  water  right  and  the  land  must  be  borne 
in  mind  in  considering  the  question  of  a  transfer  of  such 
right  by  the  riparian  proprietor  to  other  persons.  The  right 
is  a  right  to  use  the  water  on  the  riparian  lands,  and  not  on 
lands  that  are  not  riparian.  As  the  proprietor  himself  can- 
not, as  against  inferior  proprietors,  divert  the  water  to  non- 
12  Gelwicks  v.  Todd,  24  Colo.  494,  52  Pac.  788.  See,  contra,  the 
earlier  case  in  the  court  of  appeals, — Child  v.  Whitman,  7  Colo. 
App.  117,  42  Pac.  601.  And  see  Chamberlain  v.  Amter,  1  Colo.  App. 
13,  27  Pac.  87. 

i-'!  Coventon  v.  Seufert,  23  Ore.  548,  32  Pac.  508. 
i*  See  Nelson  v.  Clerf,  4  Wash.  405,  30  Pac.  716. 
is  Alta  Land  &  Water  Co.  v.  Hancock,  85  Cal.  219,  24  Pac.  645,  20 
Am.  St.  Rep.  217;  Gould  v.  Stafford,  91  Cal.  146,  17  Pac.  543. 

(144) 


Ch.  7]  TRANSFER   OF  WATER   RIGHTS.  §   79 

riparian  lands,  he  cannot  confer  this  right  upon  others,  and 
hence  any  conveyance  by  a  riparian  proprietor  of  the  right 
to  use  the  water  of  the  stream  will  be  void  as  to  inferior  pro- 
prietors, whose  rights  are  affected  thereby.  16  As  against 
himself,  however,  or  his  grantee,  he  may  contract  for  the 
diversion  of  the  water  to  nonriparian  lands,  though  such 
contract  will  not  affect  the  rights  of  lower  proprietors.  1T 

In  the  case  of  water  rights  acquired  by  appropriation, 
very  different  principles  apply  from  those  just  considered 
in  connection  with  the  water  rights  of  a  riparian  proprietor. 
The  right  of  the  appropriator  in  no  way  depends  upon  the 
use  of  the  water  upon  any  particular  land,  but  both  the  use- 
for  which  the  water  was  appropriated,  and  the  .place  of  ap- 
plication, may  be  changed  at  the  will  of  the  appropriator,. 
subject  only  to  the  condition  that  no  rights  of  other  persons 
be  thereby  impaired.  18  It  follows  necessarily  that  the  water 
right  is  an  independent  right  of  property,  and  may  exist 
separately  from  the  ditch  or  land  in  connection  with  which 
the  right  was  acquired.  The  ownership  of  the  ditch  or  land 
may  be  entirely  distinct  from  the  right  to  divert  the  water. 
Hence,  a  conveyance  of  the  ditch  or  land  does  not  neces- 
sarily pass  the  water  right,  but  either  may  be  conveyed  sep- 
arately from  the  other.  19 

is  Anaheim  Water  Co.  v.  Semi-Tropic  Water  Co.,  64  Cal.  185,  30 
Pac.  623;  Heilbron  v.  Fowler  Switch  Canal  Co.,  75  Cal.  426,  17  Pac. 
535;  Gould  v.  Eaton,  117  Cal.  539,  49  Pac.  577. 

i- Doyle  v.  San  Diego  Land  &  Town  Co.,  46  Fed.  709;  Gould  v. 
Stafford,  91  Cal.  146,  27  Pac.  543;  Yocco  v.  Conroy,  104  Cal.  468,  38- 
Pac.  107;  Gould  v.  Eaton,  117  Cal.  539,  49  Pac.  577. 

is  See  ante,  §§  45,  50. 

i»  Strickler  v.  City  of  Colorado  Springs,  16  Colo.  61,  26  Pac.  313; 
Oppenlander  v.  Left  Hand  Ditch  Co.,  18  Colo.  142,  31  Pac.  854;  Ar- 
nett  v.  Linhart,  21  Colo.  188,  40  Pac.  355;  Gelwicks  v.  Todd,  24  Colo. 

(145) 


§   80  LAW  OF  IRRIGATION.  [Ch.  7 

§    80.    Formalities  of  Conveyance. 

An  irrigating  ditch  being  a  part  of  the  realty,  title  to  the 
•ditch,  or  any  interest  therein,  can  be  acquired  only  by  deed, 
prescription  or  condemnation, — a  verbal  transfer  is  insuf- 
ficient.20 So,  also,  an  interest  in  a  ditch  and  water  right 
should  be  transferred  in  the  same  manner,  and  with  the 
same  formalities  which  attend  conveyances  of  other  real 
property.21  The  same  principle  will  undoubtedly  hold 
where  the  water  right  itself  is  sold  independently  of  any 
interest  in  the  land  or  ditch ;  22  and  the  general  rule  may 
be  laid  down  that  any  transfer  of  an  irrigating  ditch  with- 
out the  water  right,  or  of  the  water  right  without  the  ditch, 
or  of  a  ditch  and  water  right  together,  should  be  by  deed.  23 
So,  also,  any  agreement  for  a  conveyance  of  a  ditch  and 
water  right  is  within  the  statute  of  frauds,  and  should  be 

494,  52  Pac.  788;  Cache  La  Poudre  Irr.  Co.  v.  Larimer  &  Weld  Res- 
ervoir Co.,  25  Colo.  144,  53  Pac.  318;  Ada  County  Farmers'  Irr.  Co. 
v.  Farmers'  Canal  Co.,  (Idaho,  1898)  51  Pac.  990;  Wold  v.  May,  10 
Wash.  157,  38  Pac.  875;  McPhail  v.  Forney,  4  Wyo.  556,  35  Pac.  773. 
See,  also,  Clifford  v.  Larrien  (Ariz.,  1886)  11  Pac.  397;  McLear  v. 
Hapgood,  85  Cal.  555,  24  Pac.  788. 

Where  a  deed  conveyed  an  interest  in  a  ditch  and  water  right, 
"with  the  appurtenances,"  it  was  held  to  be  error  to  rule,  as  a  mat- 
ter of  law,  that  lateral  ditches,  not  mentioned  in  the  deed,  and  not 
shown  by  the  terms  therebf  to  be  essential  to  the  enjoyment  of  the 
rights  conveyed,  were  included  as  appurtenances,  and  to  exclude 
oral  testimony  to  the  contrary.  Carman  v.  Staudaker,  20  Mont. 
364,  51  Pac.  738. 

20  Smith  v.  O'Hara,  43  Cal.  371;   Burnham  v.  Freeman,  11  Colo. 
601,  19  Pac.  761;  Child  v.  Whitman,  7  Colo.  App.  117,  42  Pac.  601. 

21  Child  v.  Whitman,  7  Colo.  App.  117,  42  Pac.  601. 

22  See  Middle  Creek  Ditch  Co.  v.  Henry,  15  Mont.  558,  39  Pac. 
1054. 

23  See  cases  cited  in  three  notes  immediately  preceding. 


Ch.  7]  TRANSFER   OF   WATER   RIGHTS.  §   80 

in  writing.  24  The  general  rule  above  stated  is  subject  to 
a  modification  where  the  ditch  and  water  rights  are  consid- 
ered simply  as  improvements  upon  the  land,  in  the  sense  in 
which  buildings  and  fences  are  improvements,  and  not  as 
independent  rights  of  property.  In  such  case,  any  transfer 
that  is  sufficient  to  pass  title  to  the  land  will  vest  in  the 
purchaser  the  ditches  and  water  rights  thereon.  Thus,  where 
an  appropriation  is  made  by  a  settler  on  public  lands,  in 
whom  the  legal  title  has  not  yet  vested,  and  whose  right  to 
the  land,  therefore,  is  merely  possessory,  and  hence  may  be 
sold  or  transferred  without  any  formal  deal  of  conveyance, 
a  verbal  sale  of  such  possessory  title  will  carry  with  it  the 
water  right  also  as  a  necessary  incident  to  the  complete  en- 
joyment of  the  land,  unless  such  right  be  expressly  re- 
served. 25 

In  accordance  with  the  general  rule  governing  conveyances 
of  real  estate,  it  is  held  that  a  conveyance  of  a  water  right  is 
valid  as  between  the  parties,  although  not  acknowledged 
or  recorded.  26  And  where  a  statute  declares  that  convey- 
ances of  real  estate  not  duly  recorded  shall  be  void  as  to  a 
subsequent  purchaser  of  such  real  estate,  whose  conveyance 
shall  be  first  duly  recorded,  an  appropriator  of  water  is 
not  a  purchaser,  in  the  sense  of  the  statute,  and  a  prior  con- 
veyance of  the  water  right,  although  not  acknowledged  or 
recorded,  is  valid  against  him.  27 

2*  Hayes  v.  Fine,  91  Cal.  391,  27  Pac.  772. 

25  McDonald    v.    Lannen,    19    Mont.    78,    47    Pac.    648;    Wood    v. 
Lowney,  20  Mont.  273,  50  Pac.  794;  Hindman  v.  Rizor,  21  Ore.  112, 
27  Pac.  13;  Low  v.  Schaffer,  24  Ore.  239,  33  Pac.  678;  Geddis  v.  Par- 
rish,  1  Wash.  587,  21  Pac.  314. 

26  Middle  Creek  Ditch  Co.  v.  Henry,  15  Mont.  558,  39  Pac.  1054. 

27  Id. 

(147) 


§   81  LAW  OF  IRRIGATION.  [Ch.  7 

S    81.    Contracts  and  Licenses  Affecting  Water  Rights. 

A  right  to  the  use  of  water  for  irrigation  may  be  acquired 
by  contract  with  the  owner  of  the  right.28  So,  also,  several 
persons  having  the  right  to  use  water  may  enter  into  con- 
tracts with  each  other  to  secure  to  themselves,  respectively, 
the  better  enjoyment  of  the  water.29  Although  contracts 
affecting  water  rights  and  ditches,  as  relating  to  realty,  are 
within  the  statute  of  frauds,  rights  growing  out  of  such  con- 
tracts will  be  enforced  by  a  court  of  equity  when  there  has 
been  such  performance  of  the  contracts  as  to  take  them  out 
of  the  operation  of  the  statute.30 

A  parol  license  to  divert  and  use  water  is  ordinarily  rev- 
ocable, and  vests  in  the  licensee  no  title  to  the  water.31  But 
such  license  cannot  be  revoked  where  it  has  been  fully  exe- 
cuted, and  the  licensee,  relying'  upon  the  license,  has  ex- 
pended money  or  performed  labor  in  making  valuable  and 

-s  For  example  and  construction  of  such  contracts,  see  Ferrea  v. 
Chabot,  63  Cal.  564,  121  Cal.  233,  53  Pac.  689,  1092.  Durkee  v.  Cota, 
74  Cal.  313,  16  Pac.  5;  Natoma  Water  &  Min.  Co.  v.  Hancock,  101 
Cal.  42,  31  Pac.  112,  35  Pac.  334;  Sefton  v.  Prentice,  103  Cal.  670, 
37  Pac.  641;  Bean  v.  Stoneman,  104  Cal.  49,  37  Pac.  777,  38  Pac. 
39;  Houston  v.  Bybee,  17  Ore.  140,  20  Pac.  51. 

The  tender  of  water  certificates  issued  by  an  irrigation  company, 
securing  to  the  holder  a  specified  flow  of  water,  is  a  sufficient  offer 
of  performance  of  a  contract  to  convey  a  good  and  sufficient  wa- 
ter right  to  the  quantity  represented  by  such  certificates.  Fair- 
banks v.  Rollins  (Cal.,  1898)  54  Pac.  79. 

As  to  contracts  with  irrigation  companies,  see  post,  §  131. 

1:0  See  Weill  v.  Baldwin,  64  Cal.  476,  2  Pac.  249;  Coffman  v.  Robbins, 
8  Ore.  279;  Combs  v.  Slayton,  19  Ore.  99,  26  Pac.  661. 

soTynon  v.  Despain,  22  Colo.  240,  43  Pac.  1039;  McLure  v.  Koen, 
25  Colo.  284,  53  Pac.  1058;  Coffman  v.  Robbins,  8  Ore.  279;  Combs 
v.  Slayton,  19  Ore.  99,  26  Pac.  661. 

si  Jensen  v.  Hunter  (Cal.,  1895)  41  Pac.  14. 
(148) 


Ch.  7]  TRANSFER   OF   WATER   RIGHTS.  §   81 

permanent  improvements  upon  his  property.  32  It  is  held, 
however,  that  the  parol  license  so  sanctioned  and  upheld 
must  be  something  more  than  a  passive  acquiescence  on  the 
part  of  the  owner  of  the  water  right,  and  must  be  founded 
on  a  valuable  consideration,  for  otherwise  the  owner  of  the 
water  right  might  be  deprived  thereof  by  seeing  his  neighbor 
constructing  a  ditch,  and  making  no  objection  thereto  until 
the  water  was  diverted,  under  an  honest  belief  that  he  in- 
tended to  use  only  the  surplus  water.33  One  who  grants  a 
parol  license  to  divert  water  for  the  irrigation  of  certain 
land  is  not  thereby  estopped  to  enjoin  the  diversion  of  such 
water  for  the  irrigation  of  other  land.  34 

32  Smith  v.  Green,  109  Cal.  228,  41  Pac.  1022;  Curtis  v.  La  Grande 
Hydraulic  Water  Co.,  20  Ore.  34,  23  Pac.  808,  25  Pac.  378;  McBoom 
v.  Thompson,  25  Ore.  559,  37  Pac.  57;  Garrett  v.  Bishop,  27  Ore.  349, 
41  Pac.  10;   North  Powder  Milling  Co.  v.  Coughanour  (Ore.,  1898) 
54  P'ac.  223;  Bowman  v.  Bowman  (Ore.,  1899)  57  Pac.  546;  Lavery 
v.  Arnold  (Ore.,  1899)  57  Pac.  906. 

33  Lavery  v.  Arnold  (Ore.,  1899)  57  Pac.  906. 

34  North  Powder  Milling  Co.  v.  Coughanour   (Ore.,  1898)   54  Pac. 
223. 

(149) 


§  82  LAW  OF  IRRIGATION.  [Ch.  8 


CHAPTER  VIII. 

ABANDONMENT,  ADVERSE  USER   AND  ESTOPPEL. 

§  82.     Abandonment — Loss  of  Water  Right  by  Abandonment  or  Non- 
user. 

83.  Same — Abandonment  and  Nonuser  Distinguished. 

84.  Same — Abandonment  of  Ditch  without  Abandonment  of  Wa- 

ter Right. 

85.  Same — What  Constitutes  Abandonment. 

86.  Same — Transfer  of  Water  Right  as  Abandonment. 

87.  Same — Proof  of  Abandonment. 

88.  Adverse  User — Water  Right  may  be  Acquired   by   Adverse 

User. 

89.  Same — Acquisition  of  Water  Right  by  Appropriation  and  by 

Prescription  Contrasted. 

90.  Same — User   must   be   Adverse — What   Constitutes   Adverse 

User. 

91.  Same — User  must  be  Continuous. 

92.  Same — Proof  of  Adverse  User. 

93.  Same — No  Adverse  User  as  against  the  United  States. 

94.  Estoppel — Water  Right  Lost  by  Estoppel. 

§    82.    Abandonment— Loss  of  Water  Right  by  Abandonment  or 
Nonuser. 

As  we  have  seen  in  previous  sections,  a  right  to  use 
water  for  irrigation  may  be  acquired  by  appropriation  or  by 
grant.  We  are  now  to  consider  some  other  modes  in  which 
a  water  right  may  be  acquired  or  lost,  and  will  take  up  first 
the  subject  of  the  loss  of  water  rights  by  abandonment  or 
nonuser. 

As  has  been  stated  in  a  previous  section,  the  right  of  a  ri- 
parian proprietor  at  common  law  to  the  use  of  the  water 
of  a  stream  is  in  no  way  dependent  upon  user,  and  hence 
(150) 


Ch.  8J     ABANDONMENT  AND  ADVERSE  USER.       g  83 

cannot  be  lost  by  nonuser  or  abandonment.1  In  this  respect 
an  important  difference  exists  between  the  rights  of  a  ri- 
parian proprietor  and  rights  acquired  by  appropriation. 
The  right  of  the  appropriator  is  based,  in  the  first  instance, 
upon  the  actual  diversion  of  the  water,  and  its  application 
to  a  beneficial  use,  and  the  continuance  of  the  right  depends 
upon  the  continued  use  of  the  water,  and  hence  the  right 
acquired  by  prior  appropriation  may  be  lost  by  abandon- 
ment or  nonuser.  2  Where  a  right  to  water  has  been  thus 
lost  by  abandonment,  the  water  is  subject  to  a  new  appro- 
priation. 3  And  the  appropriator  himself  may  make'  a  new 
appropriation  of  the  water  if,  after  having  abandoned  his 
right,  he  returns,  and  resumes  possession,  no  adverse  in- 
terests having  been  in  the  meanwhile  acquired.  4 

Like  a  water  right,   an  easement  in  an  irrigating  ditch 
over  the  land  of  another  may  be  lost  by  abandonment.  5 

§    83.    Same— Abandonment  and  Nonuser  Distinguished. 

In  considering  the  question  of  the  loss  of  water  rights  on 
account  of  the  failure  to  make  use  of  the  water,  it  is  im- 

1  See  ante,  §  12. 

2  Hewitt  v.  Story,  51  Fed.  101;   Davis  v.  Gale,  32  Cal.  27;   Utt  v. 
Frey,  106  Cal.  392,  39  Pac.  807;  Smith  v.  Green,  109  Cal.  228,  41  Pac. 
1022;   Smith  v.  Hawkins,  110  Cal.  122,  42  Pac.  453;   Id.,  120  Cal.  86, 
52  Pac.  139;  Dorr  v.  Hammond,  7  Colo.  79,  1  Pac.  693;  New  Mercer 
Ditch  Co.  v.  Armstrong,  21  Colo.  357,  40  Pac.  989;   Hall  v.  Lincoln, 
10  Colo.  App.  360,  50  Pac.  1047;   Hindman  v.  Rizor,  21  Ore.  112,  27 
Pac.  13;   Cole  v.  Logan,  24  Ore.  304,  33  Pac.  568;   Low  v.  Rizor,  25 
Ore.  551,  37  Pac.  82;   Morrison  v.  Winn,  17  Utah,  484,  54  Pac.  761. 
See,  also,  Wa^er  Supply  &  Storage  Co.  v.  Larimer  &  Weld  Irr.  Co., 
24  Colo.  322,  51  Pac.  496. 

s  Smith  v.  Green,  109  Cal.  228,  41  Pac.  1022. 
*  Tucker  v.  Jones,  8  Mont.  225,  19  Pac.  571. 
•-.  Stalling  v.  Ferrin,  7  Utah,  477,  27  Pac.  686. 


83  LAW  OF  IRRIGATION.  Qh.  8 


portant  to  bear  in  mind  an  essential  distinction  between 
abandonment  and  nonuser,  as  affecting  the  period  of  time 
within  which  the  forfeiture  is  complete.  If  the  appropri- 
ator  has  in  fact  abandoned  his  right,  the  length  of  time  for 
which  he  has  ceased  to  use  the  water  is  wholly  immaterial, 
for  the  moment  the  abandonment  itself  is  complete,  the 
rights  of  the  appropriator  are  extinguished.  But  in  the  case 
of  mere  nonuser,  the  rights  of  the  appropriator  are  not  af- 
fected until  he  has  failed  to  make  any  beneficial  use  of  the 
water  for  the  prescriptive  period,  when  they  become  ex- 
tinguished, although  the  conduct  of  the  appropriator  with 
reference  to  the  property  may  negative  the  idea  of  aban- 
donment.6 

The  nonuser  must  continue  for  a  period  sufficient  to  bar 
the  right  by  lapse  of  time.  In  the  absence  of  any  legisla- 
tive declaration  on  the  subject,  this  period  is  held  by  analogy 
to  be  the  period  fixed  by  law  for  the  limitation  of  actions  to 
recover  real  property.7  Where  an  appropriator  ceases  to 
use  the  water  appropriated  for  a  time,  but  afterwards  re- 
sumes the  use  of  a  portion  of  it  before  the  expiration  oi'  the 
period  of  limitations,  he  does  not  lose  his  right,  as  to  such 
portion,  by  nonuser.  8 

A  statute  providing  that,  when  an  appropriator  or  his  suc- 
cessor in  interest  ceases  to  use  the  water  for  some  useful 

«  Smith  v.  Hawkins,  110  Cal.  122,  42  Pac.  453. 

•  This  period  is,  in  California,  five  years.  Smith  v.  Hawkins,  110 
Cal.  122,  42  Pac.  453. 

A  perpetual  right  to  use  water  from  an  irrigating  ditch,  reserved 
in  a  contract,  constitutes  an  easement  in  the  ditch,  and  cannot  be 
lost  or  abandoned  by  nonuser  alone  short  of  the  period  for  the  lim- 
itation of  actions  to  recover  real  property.  People  v.  Farmers' 
High  Line  Canal  &  Reservoir  Co.,  25  Colo.  202,  54  Pac.  626. 

s  Smith  v.  Logan,  18  Nev.  149,  1  Pac.  678.  . 

(152) 


Ch.   8J  ABANDONMENT  AND  ADVERSE  USER.        §§   84-85 

or  beneficial  purpose,  his  right  ceases,  deals  with  a  forfeit- 
ure by  nonuser  merely,  and  does  not  contemplate  the  loss 
of  the  right  by  abandonment,  and  hence,  in  applying  the 
statute,  the  question  to  be  considered  is  whether  the  nonuser 
has  continued  for  a  period  sufficient  to  work  a  forfeiture  of 
the  right.  9 

$    84.    Same — Abandonment  of  Ditch  without  Abandonment  of 
Water  Right. 

Since  a  water  right  and  the  ditch  by  which  the  water  is 
•conveyed  are  independent  subjects  of  property,  an  irrigating 
ditch  may  be  abandoned  without  an  abandonment  of  the 
water  right,  as  where  old  ditches  are  abandoned,  and  new 
ditches  substituted  therefor  for  the  conveyance  of  the  same 
water.10 

§    85,    Same— What  Constitutes  Abandonment. 

It  is  sometimes  a  matter  of  difficulty  in  a  particular  case 
to  determine  whether  or  not  a  water  right  has  been  aban- 
doned,— that  is,  whether  the  acts  of  the  owner  of  the  water 
right  in  respect  thereto  constitute  an  abandonment.  The 
difficulty,  however,  is  one  of  proof  merely,  for  the  general 
doctrine  as  to  what  constitutes  abandonment  is  well  settled. 
Abandonment  is  a  matter  of  both  intention  and  act,  1T  and 
consists  in  the  relinquishment  of  possession  without  any 

o  Smith  v.  Hawkins,  110  Cal.  122,  42  Pac.  453. 

iQMcGuire  v.  Brown,  106  Cal.  660,  39  Pac.  1060;  Greer  v.  Heiser, 
16  Colo.  306,  26  Pac.  770;  Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac. 
278;  New  Mercer  Ditch  Co.  v.  Armstrong,  21  Colo.  357, -40  Pac.  989; 
Kleinschmidt  v.  Greiser,  14  Mont.  484,  37  Pac.  5. 

11  Nichols  v.  Lantz,  9  Colo.  App.  1,  47  Pac.  70;  Gassert  v.  Noyes 
18  Mont.  216,  44  Pac.  959. 

(153 


§  85  LAW  OF  IRRIGATION.  [<Jh.  8 

present  intention  to  repossess.  12  Mere  nonuser  is  not  in 
itself  an  abandonment,  13  though,  if  continued  for  a  suf- 
ficient length  of  time,  it  may  result  in  a  forfeiture  of  the 
water  right  by  prescription.  14  The  intention  of  the  party 
is  always  a  controlling  consideration  on  the  question  of 
abandonment.  15  To  constitute  an  abandonment,  there  must 
be  both  a  relinquishment  of  possession  or  nonuser,  and  the 
intention  to  abandon.  Either,  without  the  other,  is  insuf- 
ficient. 16 

But  while  mere  nonuser  does  not  amount  to  abandonment, 
it  is  competent  evidence  on  the  question  of  abandonment, 
and,  if  continued  for  an  unreasonable  period,  it  may  create 
a  presumption  of  an  intention  to  abandon,  and  may  war- 
rant the  deduction  of  the  fact  of  abandonment.  This  pre- 
sumption, however,  is  not  conclusive,  and  may  be  overcome 

12  Utt  v.  Frey,  106  Cal.  392,  39  Pac.  807. 

is  People  v.  Farmers'  High  Line  Canal  &  Reservoir  Co.,  25  Colo. 
202,  54  Pac.  626;  Putnam  v.  Curtis,  7  Colo.  App.  437,  43  Pac.  1056; 
Ada  County  Farmers'  Irr.  Co.  v.  Farmers'  Canal  Co.  (Idaho,  1898) 
51  Pac.  990;  Tucker  v.  Jones,  8  Mont.  225,  19  Pac.  571;  Gassert  v. 
Noyes,  18  Mont.  216,  44  Pac.  959;  Sloan  v.  Glancy,  19  Mont.  70,  47 
Pac.  334;  Arnold  v.  Passavant,  19  Mont.  575,  49  Pac.  400;  Turner  v. 
Cole,  31  Ore.  154,  49  Pac.  971. 

i*  See  ante,  §  83. 

is  Utt  v.  Frey,  106  Cal.  392,  39  Pac.  807;  Beaver  Brook  Reservoir 
&  Canal  Co.  v.  St.  Vrain  Reservoir  &  Fish  Co.,  6  Colo.  App.  130,  40 
Pac.  1066;  Putnam  v.  Curtis,  7  Colo.  App.  437,  43  Pac.  1056;  Hall  v. 
Lincoln,  10  Colo.  App.  360,  50  Pac.  1047;  Ada  County  Farmers'  Irr. 
Co.  v.  Farmers'  Canal  Co.  (Idaho,  1898)  51  Pac.  990;  Tucker  v. 
Jones,  8  Mont.  225,  19  Pac.  571;  Middle  Creek  Ditch  Co.  v.  Henry, 
15  Mont.  558,  39  Pac.  1054;  Gassert  v.  Noyes,  18  Mont.  216,  44  Pac. 
959;  Hindman  v.  Rizor,  21  Ore.  112,  27  Pac.  13;  Low  v.  Schaffer,  24 
Ore.  239,  33  Pac.  678;  Turner  v.  Cole,  31  Ore.  154,  49  Pac.  971. 

is  Utt  v.  Frey,  106  Cal.  392,  39  Pac.  807. 
(154) 


Ch.  8]      ABANDONMENT  AND  ADVERSE  USER.       §  86 

by  other  satisfactory  evidence.  1T  A  corporation  having, 
under  its  charter,  the  exclusive  right  to  divert,  use  and 
control  the  waters  of  a  stream  for  agricultural  and  other 
purposes,  cannot  allow  such  right  to  remain  in  abeyance  for 
a  long  series  of  years,  and  thereafter  assert  the  same  to  the 
exclusion  of  those  who  have,  in  the  meantime,  acquired  rights 
to  the  use  of  such  waters  by  actual  appropriation  and  use,. 
in  pursuance  of  the  general  laws  of  the  state.  18 

Where  a  water  right  is  owned  by  several  persons  as  ten- 
ants in  common,  the  failure  of  one  of  them  to  use  his  full 
share  of  the  water  is  not  an  abandonment  of  the  right  to  the 
water  not  used,  where  such  water  is  used  by  his  cotenants, 
for  one  tenant  in  common  may  preserve  the  common  estate 
for  the  benefit  of  his  cotenants.  19. 

§    86.    Same— Transfer  of  Water  Right  as  Abandonment. 

A  valid  transfer  of  a  water  right  is,  of  course,  not  an 
abandonment  thereof,  but  simply  passes  the  right  of  the 
transferror  to  the  transferee.20  Thus,  a  mortgage  of  a  water 
right  is  not  an  abandonment.  21  And  a  parol  transfer  by  a 
settler  on  public  land  of  his  right  to  the  land  and  the  water 
right  appurtenant  thereto,  although  made  without  considera- 
tion, being  sufficient  to  pass  title  to  the  land  and  water  right, 
is  not  an  abandonment  of  the  land  or  water  right.  22  Sor 

17  Davis  v.  Gale,  32  Cal.  27;  Utt  v.  Frey,  106  Cal.  392,  39  Pac.  807; 
Sieber  v.  Frink,  7  Colo.  148,  2  Pac.  901. 

is  Platte  Water  Co.  v.  Northern  Colorado  Irr.  Co.,  12  Colo.  525,  21 
Pac.  711. 

19  Cache  La  Poudre  Irr.  Co.  v.  Larimer  &  Weld  Reservoir  Co.,  25 
Colo.  144,  53  Pac.  318;  Moss  v.  Rose,  27  Ore.  595,  41  Pac.  666. 

20  Middle  Creek  Ditch  Co.  v.  Henry,  15  Mont.  558,  39  Pac.  1054. 

21  Smith  v.  Denniff  (Mont,  1900)  60  Pac.  398. 

22  Wood  v.  Lowney,  20  Mont.  273,  50  Pac.  794. 

(155) 


§   87  LAW  OF  IRRIGATION.  [Qh.   8 

also,  a  grant  of  a  ditch  and  water  right  to  an  alien  is  not 
an  abandonment  by  the  grantor,  for  an  alien  may  take  real 
•estate,  and  hold  the  same  against  collateral  attacks  by  third 
persons  other  than  the  sovereign  until  office  found,  and,  in 
the  absence  of  forfeiture  by  office  found,  may  convey  title 
to  his  grantee.  23 

It  has  been  held  that  a  verbal  sale  and  transfer  of  his 
water  right  by  a  prior  appropriator,  when  insufficient  to  pass 
title,  operates  ipso  facto  as  an  abandonment  of  the  right; 
this,  presumably  on  the  ground  that  the  grantor,  by  such  at- 
tempted or  invalid  sale,  manifests  an  intent  to  give  up  his 
right,  which  right,  however,  the  grantee  under  the  invalid 
grant  cannot  take,  the  result  being  that  the  right  is  lost  to 
the  grantor,  and  does  not  pass  to  the  grantee, — that  is,  is 
simply  abandoned.  24 

•§    87.    Same— Proof  of  Abandonment. 

The  question  whether  or  not  a  water  right  has  been  aban- 
doned is  one  of  fact,  to  be  determined  by  the  jury,  or  by  the 
•court,  sitting  as  such.  25  Where  the  appropriator  continues 
in  the  use  of  his  rights  without  any  unreasonable  voluntary 
cessation,  an  abandonment  will  not  be  presumed  against 
him.  26  On  the  contrary,  forfeitures  are  not  favored,  and  an 
appropriator  will  not  be  held  to  have  abandoned  his  right 
•except  upon  reasonably  clear  and  satisfactory  evidence.  27 

.23  Quigley  v.  Birdseye,  11  Mont.  439,  28  Pac.  741. 

2*  Low  v.  Schaffer,  24  Ore.  239,  33  Pac.  678,  citing  Smith  v. 
O'Hara,  43  Cal.  371.  And  see  the  mining  case,  Barkley  v.  Tieleke, 
2  Mont.  89.  But  see  Hindman  v.  Rizor,  21  Ore.  112,  27  Pac.  13. 

25  Utt  v.  Frey,  106  Cal.  392,  39  Pac.  807. 

se  Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac.  278. 

2^  Rominger  v.  Squires,  9  Colo.  327,  12  Pac.  213;  Beaver  Brook 
(156) 


Ch.  8]  ABANDONMENT  AND  ADVERSE  USER.  §   88 

There  must  be  a  manifest  intention  on  his  part  to  abandon 
his  right  this  intention  to  be  determined  from  his  declara- 
tions and  acts  in  relation  thereto.28  The  burden  of  proving 
an  abandonment  rests  upon  the  party  asserting  it.29 

8    88.    Adverse  User— Water  Right  may  be  Acquired  by  Adverse 
User. 

The  right  to  the  use  of  water  for  irrigation  may  be  ac- 
quired not  only  by  original  appropriation  or  by  grant,  but 
also,  as  against  individuals  in  whom  the  right  is  vested,  by 
adverse  possession  and  use.  30  Such  prescriptive  right  may 
be  acquired  either  against  one  who  has  acquired  his  right  to 
the  water  by  prior  appropriation  or  otherwise,31  or  against 
one  who,  as  a  lower  riparian  proprietor,  is  entitled  to  the 
natural  flow  of  the  stream  as  it  passes  through  his  lands ;  for, 
while  a  riparian  proprietor  does  not  lose  his  right,  as  such 

Reservoir  &  Canal  Co.  v.  St.  Vrain  Reservoir  &  Fish  Co.,  6  Colo. 
App.  130,  40  Pac.  1066;  Hall  v.  Lincoln,  10  Colo.  App.  360,  50  Pac. 
1047;  Ada  County  Farmers'  Irr.  Co.  v.  Farmers'  Canal  Co.  (Idaho, 
1898)  51  Pac.  990. 

28Hindman  v.  Rizor,  21  Ore.  112,  27  Pac.  13;  Low  v.  Shaffer,  24 
Ore.  239,  33  Pac.  678. 

29  Putnam  v.  Curtis,  7  Colo.  App.  437,  43  Pac.  1056;  Hall  v.  Lin- 
coln, 10  Colo.  App.  360,  50  Pac.  1047;  Beaver  Brook  Reservoir  & 
Canal  Co.  v.  St.  Vrain  Reservoir  &  Fish  Co.,  6  Colo.  App.  130,  40 
Pac.  1066. 

so  Davis  v.  Gale,  32  Cal.  27 ;  Cox  v.  Clough,  70  Cal.  345,  11  Pac. 
732;  Alhambra  Addition  Water  Co.  v.  Richardson,  72  Cal.  598,  14 
Pac.  379;  Coonradt  v.  Hill,  79  Cal.  587,'  21  Pac.  1099;  Alta  Land  &  Wa- 
ter Co.  v.  Hancock,  85  Cal.  219,  24  Pac.  645,  20  Am.  St.  Rep.  217;  Spar- 
gur  v.  Heard,  90  Cal.  221,  27  Pac.  198;  Faulkner  v.  Rondoni,  104 
Cal.  140,  37  Pac.  883;  Smith  v.  Logan,  18  Nev.  149,  1  Pac.  678;  Tram- 
bley  v.  Luterman,  6  N.  M.  15,  27  Pac.  312;  Baker  v.  Brown,  55  Tex. 
377;  Mud  Creek  Irr.,  etc.,  Co.  v.  Vivian,  74  Tex.  170,  11  S.  W.  1078. 

31  See  cases  cited  in  preceding  note. 

(157) 


§§  89-90  LAW  OF  IRRIGATION.  [Ch.  8 

proprietor,  to  the  natural  flow  of  the  stream  by  a  simple  fail- 
ure to  use  the  water,  32  the  right  to  divert  the  water  may 
nevertheless  be  acquired  against  him  by  prescription.33 

£    89.    Same— Acquisition  of  Water  Right  by  Appropriation  and 
by  Prescription  Contrasted. 

There  is  a  two-fold  distinction  between  the  acquisition  of 
a  water  right  by  appropriation  and  the  acquisition  of  such 
right  by  prescription.  In  the  first  place,  the  right  to  the  use 
of  water  may  be  acquired  by  appropriation  upon  the  public 
domain  against  the  United  States,  while  a  prescriptive  right 
cannot  be  acquired  against  the  United  States,  but  only  by  one 
private  individual  against  another.  Again,  in  order  to  per- 
fect the  right  by  appropriation,  it  is  not  necessary  that  the 
water  should  be  used  for  any  given  length  of  time,  while 
time  and  adverse  use  are  essential  elements  to  the  perfection 
of  a  prescriptive  right.  One  who  claims  a  right  by  prescrip- 
tion must  use  the  water  continuously,  uninterruptedly,  and 
adversely  for  at  least  the  prescriptive  period,  after  which 
time  the  law  will  conclusively  presume  an  antecedent  grant 
to  him  of  such  asserted  right.  34 

S    90.    Same  -User  must  be  Adverse— What  Constitutes  Adverse 
User. 

In  order  to  sustain  a  claim  to  a  prescriptive  right  to  the 

32  See  ante,  §  12. 

33  Alhambra  Addition  Water  Co.  v.  Richardson,  72  Cal.  598,  14  Pac. 
379;  Coonradt  v.  Hill,  79  Cal.  587,  21  Pac.  1099;  Alta  Land  &  Water 
Co.  v.  Hancock,  85  Cal.  219,  24  Pac.  645,  20  Am.  St.  Rep.  217;  Mes- 
senger's Appeal,  109  Pa.  St.  285,  4  Atl.  162;  Baker  v.  Brown,  55  Tex. 
377. 

34  Smith  v.  Hawkins,  110  Cal.  122,  42  Pac.  453. 


<Jh.  8]      ABANDONMENT  AND  ADVERSE  USER.     §  90 

use  of  water,  the  use  upon  which  such  claim  is  based  must, 
of  course,  be  adverse,  —  that  is  to  say,  it  must  be  accompanied 
by  all  the  elements  necessary  to  constitute  adverse  possession 
and  use.  The  claimant  must  have  used  the  water  contin- 
uously, uninterruptedly  and  adversely  for  the  full  prescrip- 
tive period.  35  The  acts  by  which  it  is  sought  to  establish 
the  prescriptive  right  must  be  such  as  to  operate  as  an  inva- 
sion of  the  right  of  the  person  against  whom  the  prescriptive 
right  is  asserted,  and  will  give  a  cause  of  action  in  his 
favor.  36  ~No  adverse  user  can  be  initiated  until  the  owners 
of  the  water  right  are  deprived  of  the  benefit  of  its  use  in 
such  a  substantial  manner  as  to  notify  them  that  their  rights 
are  being  invaded.  37 

From  these  principles,  it  follows  that  no  prescriptive  right 
to  water  can  be  acquired  by  the  use  thereof  by  permission  or 


v.  Estrada  (Ariz.,  1899)  56  Pac.  721;  Anaheim  Water  Co. 
v.  Semi-Tropic  Water  Co.,  64  Cal.  185S  30  Pac.  623;  Cox  v.  Clough, 
70  Cal.  345,  11  Pac.  732;  Oneto  v.  Restano,  78  Cal.  374,  20  Pac.  743; 
Id.,  89  Cal.  63,  26  Pac.  788;  Heintzen  v.  Binninger,  79  Cal.  5,  21  Pac. 
377;  Lakeside  Ditch  Co.  v.  Crane,  80  Cal.  181,  22  Pac.  76;  Paige  v. 
Rocky  Ford  Canal  &  Irr.  Co.,  83  Cal.  84,  21  Pac.  1102,  23  Pac.  875; 
Alta  Land  &  Water  Co.  v.  Hancock,  85  Cal.  219,  24  Pac.  645,  20  Am. 
St.  Rep.  217;  Last  Chance  Water  Ditch  Co.  v.  Heilbron,  86  Cal.  1, 
26  Pac.  523;  Ball  v.  Kehl.  95  Cal.  606,  30  Pac.  780;  Natoma  Water  & 
Min.  Co.  v.  Hancock,  101  Cal.  42,  31  Pac.  112,  35  Pac.  334;  Faulkner 
v.  Rondoni,  104  Cal.  140,  37  Pac.  883;  Vernon  Irr.  Co.  v.  City  of  Los 
Angeles,  106  Cal.  237,  39  Pac.  762;  Smith  v.  Hawkins,  110  Cal.  122, 
42  Pac.  453;  Huston  v.  Bybee,  17  Ore.  140,  20  Pac.  51;  Smith  v. 
North  Canyon  Water  Co.,  16  Utah,  194,  52  Pac.  283;  Center  Creek 
Water  &  Irr.  Co.  v.  Lindsay  (Utah,  1900)  60  Pac.  559. 

The  adverse  user  must  continue  for  the  full  prescriptive  period. 
Lavery  v.  Arnold  (Ore.,  1899)  57  Pac.  906.  In  Texas,  this  period, 
by  analogy,  is  the  same  as  that  required  to  bar  the  right  of  entry 
to  land,  —  that  is,  ten  years.  Baker  v.  Brown,  55  Tex.  377. 

so  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176,  Fed.  Gas.  No.  14,- 


§  90  LAW  OF  IRRIGATION.  [Ch.  8 

sufferance  of  the  owner,  who  continues  to  exercise  dominion 
over  it.  38  So,  also,  where  there  is  sufficient  water  in  the 
stream  to  supply  the  wants  and  demands  of  all  the  parties, 
its  use  by  one  cannot  be  an  invasion  of  the  rights  of  any 
other,  and  hence  cannot  be  the  foundation  of  any  prescrip- 
tive claim.  39  Again,  since  a  riparian  proprietor  has  no  in- 
terest in  the  water  of  a  stream  after  it  has  passed  his  land, 
and  hence  cannot  complain  of  its  diversion  and  use  by  lower 
proprietors,  the  diversion  and  use  by  a  lower  proprietor  of 
the  water  which  the  upper  proprietor  has  permitted  to  flow 
down  from  his  land  cannot  amount  to  an  invasion  of  the 
rights  of  the  Jatter,  and  is  not  adverse,  in  the  sense  required 
to  give  a  right  by  prescription.  40 

A  mere  claim  of  a  right  to  the  use  and  enjoyment  of  water, 
however  long  continued,  will  not  ripen  into  adverse  title 
thereto.  There  must  be  the  actual  appropriation  of  the 
water,  followed  by  open,  notorious,  continuous  and  exclu- 
sive possession,  under  claim  of  title,  for  the  statutory  pe- 

371;  Anaheim  Water  Co.  v.  Semi-Tropic  Water  Co.,  64  Cal.  185,  30 
Pac.  623;  Lakeside  Ditch  Co.  v.  Crane,  80  Cal.  181,  22  Pac.  76;  Har- 
grave  v.  Cook,  108  Cal.  72,  41  Pac.  18. 

37  Bowman  v.  Bowman  (Ore.,  1899)  57  Pac.  546;  Boyce  v.  Cup- 
per (Ore.,  1900)  61  Pac.  642. 

3s  Crawford  v.  Minnesota  &  M.  Land  &  Imp.  Co.,  15  Mont.  153,  38- 
Pac.  713.  To  the  same  effect,  see  Bgan  v.  Estrada  (Ariz.,  1899) 
56  Pac.  721;  Bathgate  v.  Irvine  (Cal.,  1899)  58  Pac.  442. 

39  Egan  v.  Estrada  (Ariz.,  1899)  56  Pac.  721;  Anaheim  Water  Co. 
v.  Semi-Tropic  Water  Co.,  64  Cal.  185,  30  Pac.  623;  Church  v.  Still- 
well,  12  Colo.  App.  43,  54  Pac.  395;  North  Powder  Milling  Co.  v. 
Coughanour  (Ore.,  1898)  54  Pac.  223. 

«Hargrave  v.  Cook,  108  Cal.  72,  41  Pac.  18;  Bathgate  v.  Irvine- 
(Cal.,  1899)  58  Pac.  442;  Mud  Creek  Irr.,  etc.,  Co.  v.  Vivian,  74  Tex. 
170,  11  S.  W.  1078. 

(160) 


Ch.  8]      ABANDONMENT  AND  ADVERSE  USER.       §  91 

iod.41  Statutory  appropriation,  however,  is  not  necessary,, 
though  it  affords  to  one  who  seeks  to  acquire  a  right  by  pre- 
scription this  advantage,  that  it  gives  to  prior  claimants 
notice  that  his  user  is  adverse,  and  under  claim  of  right,  and 
sets  the  statute  in  motion  against  them.42 

The  mere  construction  of  ditches  for  the  purpose  of  using 
the  water  without  actual  use  thereof  is  not  sufficient  to  set 
the  statute  in  motion,  and  the  adverse  user  begins  to  run 
from  the  date  the  water  was  applied  to  the  beneficial  use  and 
not  from  the  time  of  constructing  the  ditch.43 

§    91.    Same— User  must  be  Continuous. 

In  order  to  acquire  a  right  to  the  use  of  water  by  prescrip- 
tion, the  user  must  not  only  be  adverse,  but  must  also  be  con- 
tinuous for  the  required  period.  Any  interruption  of  the- 
user  during  the  prescriptive  period  will  prevent  the  acquisi- 
tion of  the  right.  44  It  is  held,  however,  that  merely  disput- 
ing the  right  of  the  party  claiming  adversely  will  not  prevent 
the  bar  of  the  statute.  The  peaceable  possession  of  the  ad- 
verse claimant  must  be  disturbed,  and  its  continuity  broken r 
in  order  to  constitute  such  an  interruption.  45  The  inter- 
ruption here  referred  to  is  an  interruption  by  the  party 
against  whom  the  adverse  claim  is  asserted,  and  not  a  tem- 
porary interruption  of  the  actual  use  of  the  water  by  the 

41  Cox  v.  Clough,  70  Cal.  345,  11  Pac.  732. 

42  Alta  Land  &  Water  Co.  v.  Hancock,  85  Cal.  219,  24  Pac.  645,  20» 
Am.  St.  Rep.  217. 

43  Senior  v.  Anderson,  115  Cal.  496,  47  Pac.  454;  Lavery  v.  Arnold' 
(Ore.,  1899)  57  Pac.  906. 

44  Cave  v.  Crafts,  53  Cal.  135;   Last  Chance  Water  Ditch  Co.  v. 
Heilbron,  86  Cal.  1,  26  Pac.  523;   Bree  v.  Wheeler   (Cal.,  1900)   61 
Pac.  782;   Authors  v.  Bryant,  22  Nev.  242,  38  Pac.   439;   Baker  v. 
v.  Brown,  55  Tex.  377. 

45  Cox  v.  Clough,  70  Cal.  345,  11  Pac.  732. 

(161) 


§  92  LAW  OF  IRRIGATION.  [Ch.  8 

adverse  claimant  himself.  The  claimant  will  not  be  required 
to  make  actual  use  of  the  water  at  all  times,  whether  he  needs 
it  or  not,  in  order  to  make  his  use  continuous.  If  he  uses  it 
at  such  times  as  he  needs  it  throughout  the  prescriptive  pe- 
riod, this  is  sufficient;46  provided,  of  course,  that  he  has  at 
no  time  broken  the  continuity  of  his  use  by  a  technical  aban- 
donment. Any  acknowledgment  of  the  original  owner's 
superior  right  to  the  water  by  the  adverse  claimant,  as  by 
offering  to  pay  for  the  water  or  otherwise,  during  the  statu- 
tory period,  is  such  an  interruption  as  will  prevent  the  acqui- 
sition of  title  by  adverse  user.47 

§    92.    Same— Proof  of  Adverse  User. 

To  sustain  a  claim  to  a  water  right  by  adverse  user,  there 
should  be  clear  proof  of  the  adverse  user,  and  the  party  who 
relies  upon  an  adverse  user  as  the  foundation  of  his  claim 
has  the  burden  of  proving  that  the  water  has  been  used  ad- 
versely for  the  period  required  for  the  acquisition  of  title 
by  prescription.48  Thus,  in  the  case  of  actions  between 
cotenants,  the  burden  of  proving  an  ouster  of  a  tenant  in 
common  of  a  wrater  right,  and  adverse  possession  under  the 

*«  See  Hesperia  Land  &  Water  Co.  v.  Rogers,  83  Cal.  10,  23  Pac. 
196,  in  which  the  doctrine  stated  in  the  text  was  applied  to  the  ac- 
quisition of  an  easement  in  an  irrigating  ditch  over  the  land  of  an- 
other by  adverse  user. 

47  Ledu  v.  Jim  Yet  Wa,  67  Cal.  346,  7  Pac.  731;  Jensen  v.  Hunter 
(Cal.,  1895)  41  Pac.  14. 

*«Ball  v.  Kehl,  95  Cal.  606,  30  Pac.  780;  Lavery  v.  Arnold  (Ore., 
1899)  57  Pac.  906;  Smith  v.  North  Canyon  Water  Co.,  16  Utah,  194, 
52  Pac.  283. 

As  to  the  posting  of  a  notice  claiming  the  water  as  evidence  on 
the  question  of  adverse  possession,  see  City  of  Santa  Cruz  v.  En- 
right,  95  Cal.  105,  30  Pac.  197;  Bathgate  v.  Irvine  (Cal.,  1899)  58 
Pac.  442. 

(162) 


Ch.  8]     ABANDONMENT  AND  ADVERSE  USER.       §  93 

statute  of  limitations,  devolves  upon  the  cotenant  who  asserts 
it.  The  possession  of  one  cotenant  is  presumed  to  be  that  of 
all,  and  an  adverse  holding  will  not  operate  as  an  ouster,  and 
set  the  statute  of  limitations  running,  until  the  tenant  out  of 
possession  has  notice  of  such  adverse  holding.  Such  pos- 
session cannot  be  considered  adverse  unless  there  has  been  an 
actual  ouster,  or  some  act  equivalent  thereto.  49 

S    93.    Same— No  Adverse  User  as  Against  the  United  States. 

In  accordance  with  the  well-established  principle  of  law, 
that  the  statute  of  limitations  does  not  run  against  the  gov- 
ernment, it  is  held  that  no  right  to  water  can  be  acquired  by 
adverse  user,  as  against  the  United  States,  and  hence  a  claim 
to  'a  water  right  by  prescription  and  adverse  user  will  not 
avail,  as  against  a  purchaser  of  land  from  the  United  States, 
unless  such  adverse  user  has  continued  for  the  full  prescrip- 
tive period  after  title  has  passed  from  the  government.  60 
But  where  the  title  to  land  has  become  vested  in  a  private 
individual  under  an  act  of  congress,  a  water  right  may  be 
acquired  as  against  the  owner  of  the  land  by  adverse  posses- 
sion, although  a  patent  for  the  land  may  not  have  been  issued. 
The  rights  of  a  patentee  of  public  land,  upon  the  issuance 
of  the  patent,  relate  back  to  the  inception  of  his  title,  and 
hence  the  statute  will  begin  to  run  against  him  from  that 

4»  Smith  v.  North  Canyon  Water  Co.,  16  Utah  194,  52  Pac.  283. 

so  Union  Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176,  Fed.  Cas.  No.  14,- 
371;  Mathews  v.  Ferrea,  45  Gal.  51;  Wilkins  v.  McCue,  46  Cal.  656; 
Jatunn  v.  Smith,  95  Cal.  154,  30  Pac.  200;  Smith  v.  Hawkins,  110 
Cal.  122,  42  Pac.  453;  Wood  v.  Etiwanda  Water  Co.,  122  Cal.  152,  54 
Pac.  726;  Vansickle  v.  Haines,  7  Nev.  249.  But  see  Neil  v.  Tol- 
man,  12  Ore.  289,  7  Pac.  103;  Tolman  v.  Casey,  15  Ore.  83,  13  Pac. 
669. 

(163) 


§  94  LAW  OF  IRRIGATION.  [Ch.  8 

time,  if  the  use  of  the  water  has  been  already  commenced,  or 
from  the  time  of  the  commencement  of  such  use,  if  the 
grantee's  rights  have  previously  attached,  and  not  from  the 
date  of  the  patent.  51 

§    94.    Estoppel— Water  Right  Lost  by  Estoppel. 

A  person  having  a  right  to  the  use  or  flow  of  water  may,  by 
his  conduct,  become  estopped  to  object  to  its  diversion  and 
use  by  another.  There  is  nothing  peculiar  in  irrigation  law 
in  this  respect,  and  the  general  law  of  estoppel  applies.52 
Thus,  one  who  passively  stands  by  and  permits  another  to 
expend  money  or  labor  in  making  improvements  on  land,  and 
to  divert  and  use  water  on  such  land,  under  an  honest  and 
reasonable  belief  that  he  has  a  right  to  such  water,  will  be 
estopped  to  subsequently  deny  such  right. 53  But  mere 

sijatunn  v.  Smith,  95  Gal.  154,  30  Pac.  200;  Wood  v.  Etiwanda 
Water  Co.,  122  Cal.  152,  54  Pac.  726. 

52  See,  generally,  Last  Chance  Water  Ditch  Co.  v.  Heilbron,  86 
Cal.  1,  26  Pac.  523;  Natoma  Water  &  Min.  Co.  v.  Hancock,  101  Cal. 
42,  31  Pac.  112,  35  Pac.  334;  Water  Supply  &  Storage  Co.  v.  Tenney, 
24  Colo.  344,  51  Pac.  505;  Lower  Latham  Ditch  Co.  v.  Louden  Irr. 
Canal  Co.  (Colo.  Sup.,  1900)  60  Pac.  629;  Smyth  v.  Neal,  31  Ore. 
105,  49  Pac.  850;  Rigney  v.  Tacoma  Light  &  Water  Co.,  9  Wash. 
576,  38  Pac.  147. 

The  fact  that  an  upper  riparian  owner  has  "leased"  from  a  lower 
proprietor  the  right  to  use  the  waters  of  the  stream  does  not  estop 
him,  after  the  expiration  of  the  lease,  from  asserting  his  right,  as 
a  riparian  owner,  to  take  water  from  the  stream  for  necessary 
household  purposes,  and  to  make  reasonable  use  of  it  for  irrigation. 
Swift  v.  Goodrich,  70  Cal.  103,  11  Pac.  561. 

ssDalton  v.  Rentaria  (Ariz.,  1887)  15  Pac.  37;  Curtis  v.  La  Grande 
Hydraulic  Water  Co.,  20  Ore.  34,  23  Pac.  808,  25  Pac.  378;  Morrison 
v.  Winn,  17  Utah,  484,  54  Pac.  761.  See,  also,  Lavery  v.  Arnold 
(Ore.,  1899)  57  Pac.  906;  Rigney  v.  Tacoma  Light  &  Water  Co.,  9 
Wash.  576,  38  Pac.  147.  See,  also,  ante,  §  81. 
(164) 


Ch.  8]     ABANDONMENT  AND  ADVERSE  USER.       §  94 

knowledge  that  another  is  diverting  water  under  a  claim  of 
right  does  not  create  an  estoppel.54  So,  also,  permitting 
another  to  use  water  not  needed  by  the  owner  of  the  right  to 
the  water,  such  right  being  acknowledged  by  the  user,  does 
not  estop  the  owner  from  afterwards  asserting  his  right.  55 
Acquiescence  in  the  interference  of  a  water  right  does  not 
impair  such  right  unless  continued  for  a  time  sufficient  to 
•create  a  bar  by  adverse  user.  56 

5-tBathgate  v.  Irvine  (Cal.,  1899)  58  Pac.  442. 

55  Thus,  where  a  city,  having  the  exclusive  right  to  the  use  and 
control  of  the  water  of  a  stream,  permits  an  individual  to  divert  and 
use  a  portion  of  the  water  for  the  irrigation  of  his  land,  the  right  of 
the  city  to  the  water  being  acknowledged  by  such  person,  and  no 
rights  having  accrued  by  adverse  possession,  the  grantee  of  such 
person  cannot  restrain  the  city  from  closing  his  ditches  when,  by 
reason  of  his  use,  the  quantity  flowing  in  the  stream  becomes  in- 
sufficient for  the  use  of  the  city.     Feliz  v.  City  of  Los  Angeles,  58 
Cal.  73. 

56  Mayberry  v.  Alhambra  Addition  Water  Co.  (Cal.,  1898)  54  Pac. 
530. 

(165) 


§  95  LAW  OP  IRRIGATION.  [Ch.  9 

CHAPTEK  IX. 

THE  ADJUDICATION  OF  PRIORITIES. 

§     95.  General  Jurisdiction  of  Courts  to  Adjudicate  Water  Rights. 

96.  Determination  of  Quantity  of  Water  to  be  Awarded. 

97.  The  Decree — Certainty  and  Definiteness  Required. 

98.  The  Doctrine  of  Res  Judicata. 

'    99.  Statutory  Adjudication — Colorado   System — Generally. 

100.  Same — Jurisdiction  of  Courts. 

101.  Same — The  Decree. 

102.  Same — Proceedings  before  Referee. 

103.  Same — Review  and  Appeal. 

104.  Same — Independent  Action. 

105.  Same — Some  Observations  on  the  Colorado  System. 

106.  Statutory  Adjudication — Wyoming  System. 

107.  Statutory    Adjudication — Washington,    Nebraska,    Montana, 
Utah  and  Oregon. 

§    95.    General    Jurisdiction    of   Courts    to    Adjudicate    Water 
Rights. 

Whether  or  not  a  prior  right  to  the  use  of  water  for  irriga- 
tion has  been  acquired  by  appropriation,  and,  if  acquired,  the 
extent  of  such  right,  are,  of  course,  matters  of  fact  to  be  es- 
tablished by  evidence.  As  we  have  seen,  in  most  of  the 
states  appropriators  are  required  to  place  on  record  written 
evidence  of  their  appropriations,  by  filing  a  notice  of  appro- 
priation, or  a  statement  of  their  respective  claims.  Compli- 
ance with  these  requirements  has  undoubtedly  done  much  to 
lessen  the  probability  of  future  controversy  in  respect  to  the 
rights  claimed;  but  in  view  of  the  great  number  of  facts, 
often  difficult  to  prove,  which  may  have  to  be  shown  in  order 
to  establish  and  define  a  claim  to  the  use  of  water  for  irriga- 
(166) 


Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §    95 

tion,  and  in  view  also  of  the  jealousy  with  which  these  valua- 
ble rights  are  guarded  in  times  of  scarcity,  it  is  not  surpris- 
ing that  disputes  and  controversies  often  arise  which  the 
parties  themselves  are  unable  to  settle. 

The  adjudication  of  water  rights,  like  the  determination  of 
any  other  rights  of  property,  where  there  is  no  statute  provid- 
ing otherwise,  is,  of  course,  a  matter  for  the  courts,  and  is 
subject  to  the  ordinary  rules  of  procedure  in  civil  actions. 
In  some  states,  however,  special  proceedings  or  tribunals 
are  provided  for  by  statute.  In  the  present  chapter  we  shall 
consider  first  the  adjudication  of  priorities  in  ordinary  civil 
actions,  proceeding  then  to  an  examination  of  the  special 
statutory  provisions  on  the  subject. 

A  court  of  equity  has  power  to  ascertain  and  determine 
the  extent  of  the  respective  rights  of  several  appropriators 
from  a  natural  stream  in  the  water  of  such  stream,  and  to 
regulate  the  use  of  the  water  between  them  in  such  a  way  as 
to  maintain  equality  of  rights  in  the  enjoyment  thereof;  and 
it  may  restrain  by  injunction,  any  interference  by  a  subse- 
quent appropriator  with  the  rights  of  a  prior  appropriate!' 
as  ascertained  and  established  by  the  court.1 

Where,  in  a  suit  for  the  adjudication  of  water  rights,  a 
court  of  equity  is  unable  to  determine  from  the  evidence  the 
quantity  of  water  to  which  a  party  is  entitled,  it  may,  as  an 
incident  to  its  equity  jurisdiction,  with  or  without  the  con- 
sent of  the  parties,  refer  the  cause  to  a  master  for  further  in- 
vestigation and  consideration.2  The  rights  of  the  parties  are 
settled  by  the  decree  of  the  court,3  which  has,  of  course, 

i  Frey  v.  Lowden,  70  Gal.  550,  11  Pac.  838;  Barrows  v.  Fox  (Cal., 
1892)  30  Pac.  768. 

2Nephi  Irr.  Co.  v.  Jenkins,  8  Utah,  369,  31  Pac.  986. 

3  Under  a  decree  awarding  to  a  party  a  constant  flow  of  a  cer- 

(167) 


§   96  LAW   OF   IRRIGATION.  [Ch.  9 

power  to  enforce  its  decrees,  and,  if  necessary,  may  prescribe 
the  method  to  be  employed  to  measure  the  water  awarded.4 
But  where,  in  an  action  to  settle  the  water  rights  of  various 
parties  upon  a  stream,  the  court  has  established  the  priorities 
of  appropriation,  and  the  quantity  of  water  appropriated  by 
the  various  claimants,  its  functions  are  at  an  end,  and  it  may 
not  then  dictate  the  manner  in  which  an  appropriator  shall 
use  the  water  appropriated  by  him,  or  when  his  right  shall 
be  exercised,  so  long  as  the  water  is  used  within  the  limits  of 
the  appropriation.5 

Where  a  decree  has  been  entered  settling  and  adjusting 
the  rights  of  various  parties  to  the  waters  of  a  stream,  and 
enjoining  the  use  or  appropriation  of  such  waters  other  than 
as  provided  in  the  decree,  the  remedy  for  a  violation  of  the 
provisions  of  the  decree,  where  there  is  no  change  of  parties, 
conditions  or  interests,  is  by  an  action  at  law,  and  not  by  a 
bill  to  enforce  the  decree.6 

8    96.    Determination  of  Quantity  of  Water  to  be  Awarded. 
The  chief  concern  of  the  court  in  an  action  between  sev- 

tain  quantity  of  water,  such  party  cannot  use  more  than  this  quan- 
tity at  any  time,  although  he  uses  less  water  at  another  time,  so  as 
to  use  an  average  quantity  equal  to  the  continual  flow  awarded.  Al- 
hambra  Addition  Water  Co.  v.  Richardson,  95  Cal.  490,  30  Pac.  577. 

*  Tolman  v.  Casey,  15  Ore.  83,  13  Pac.  669.  A  court  having  jur- 
isdiction of  adjudication  proceedings  has  power  to  locate  a  meas- 
uring box  in  order  to  secure  the  distribution  of  the  water  in  accord- 
ance with  its  decree;  and  the  fact  that  the  land  on  which  such  box 
is  to  be  located  is  unsurveyed  government  land  does  not  affect  the 
power  of  the  court  to  locate  the  box.  Elliot  v.  Whitmore,  10  Utah, 
246,  37  Pac.  461. 

s  McGinness  v.  Stanfield   (Idaho,  1898)  55  Pac.  1020. 

e  Raft  River  Land  &  Cattle  Co.  v.  Langford  (Idaho,  1896)  46  Pac. 
1024. 
(168) 


'Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §  95 

eral  appropriators  for  the  adjudication  of  their  respective 
rights  is,  of  course,  to  determine  the  quantity  of  water  to 
which  each  party  is  entitled  under  his  appropriation.  In  the 
determination  of  this  question,  the  court  must  be  controlled 
by  the  general  principles  of  law  governing  the  appropriation 
•of  water,  and  denning  the  rights  of  the  appropriator.  To 
=each  party  must  be  awarded  that  quantity  of  water,  and  no 
more,  to  which  the  evidence  shows  him  to  be  entitled  by  vir- 
tue of  a  lawful  appropriation.  How  much  this  is,  as  a  mat- 
ter of  law,  has  been  fully  discussed  in  a  previous  chapter.7 
We  have  seen  that  an  appropriator  is  entitled  to  only  so 
much  water  as  he  has  diverted  and  uses  or  needs  for  the  prop- 
•er  irrigation  of  his  land.  In  determining  the  quantity  of 
water  appropriated,  therefore,  the  number  of  acres  claimed 
-or  owned  by  each  party,  and  the  quantity  of  water  needed  to 
properly  irrigate  the  same,  should  be  taken  into  considera- 
tion.8 The  quantity  of  water  needed  in  each  case  will  ob- 
viously depend  a  good  deal  upon  the  mode  of  irrigation  em- 
ployed, as  some  modes  are  more  wasteful  of  water  than 
•others;  but  in  determining  the  quantity  in  any  particular 
•case,  reference  must  be  had  to  the  system  of  irrigation  in 
vogue  in  the  particular  locality  as  a  standard,  although  other 
systems,  more  economical  of  water,  might  be  adopted.9 

An  appropriator  cannot  claim  more  water  than  he  diverts, 
and  therefore  the  capacity  of  his  ditch  may  sometimes  be  an 
important  point  to  be  considered.10  The  general  rule  is  that 
the  capacity  of  an  irrigating  ditch  is  measured  by  the  amount 
of  water,  making  due  allowance  for  evaporation,  seepage, 

-  See  ante,  §§  54-60. 

s  Kirk  v.  Bartholomew,  2  Idaho,  1087,  29  Pac.  40. 

»  Rodgers  v.  Pitt,  89  Fed.  420. 

10  See  ante,  §  55. 

(169) 


§  96  LAW  OF  IRRIGATION.  [Ch.  9- 

etc.,  which  it  will  carry  from  the  point  of  diversion  to  the 
point  of  use,  and  the  point  of  least  carrying  capacity  fixes  the 
general  capacity  of  the  ditch ;  though  where  a  ditch  is  intend- 
ed to  supply,  and  does  supply,  water  for  use  at  various  points 
along  its  course,  the  latter  part  of  the  ditch  need  not  be  so 
large  as  the  first  part.11  The  capacity  of  an  irrigating  ditch 
is  a  question  of  fact  which  does  not  require  for  its  proof  that 
the  witnesses  should  possess  unusual  scientific  attainments  or 
peculiar  skill,  and  it  may  be  established  by  any  competent  tes- 
timony, as  by  witnesses  qualified  by  many  years'  experience 
in  mining  and  in  measuring  and  selling  water  to  miners,  al- 
though not  experts  in  the  science  of  measuring  water.12  The 
opinion  of  a  witness  as  to  the  grade  of  a  ditch  is  competent 
evidence,  subject,  however,  to  be  overcome  by  the  other  side 
by  more  accurate  information,  if  such  can  be  produced.13 

The  court  is  not  required  to  attain  mathematical  exactness 
in  measuring  the  flow  of  water,  as  between  the  several  appro- 
priators,  but  a  reasonable  approximation  to  substantial  accu- 
racy should  be  aimed  at  in  determining  controversies  relating 
to  the  water  supply.14 

The  rights  of  an  appropriator  are  wholly  independent  of 
the  needs  of  later  appropriators,  and  therefore,  on  the  ques- 
tion of  priority  of  water  rights  acquired  by  prior  appropria- 
tion, the  question  as  to  whether  the  stream  furnishes  a  suffi- 
cient supply  of  water  for  all  the  parties  is  immaterial.15 

11  Posachane  Water  Co.  v.  Standart,  97  Cal.  476,  32  Pac.  532. 

12  Frey  v.  Lowden,  70  Cal.  550,  11  Pac.  838. 

is  Posachane  Water  Co.  v.  Standart,  97  Cal.  476,  32  Pac.  532. 

14  Union.  Mill  &  Min.  Co.  v.  Dangberg,  81  Fed.  73 ;  Combs  v.  Agri- 
cultural Ditch  Co.,  17  Colo.  146,  28  Pac.  966.  See,  also,  Neil  v.  Tol- 
man,  12  Ore.  289,  7  Pac.  103. 

is  Huning  v.  Porter  (Ariz.,  1898)  54  Pac.  584. 

(170) 


Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §   97 

§    97.     The  Decree— Certainty  and  Definiteness  Required. 

The  judgment  of  the  court  in  a  proceeding  for  the  adjudi- 
cation of  water  rights  is  embodied  in  its  findings  or  decree. 
The  purpose  of  the  decree  is  to  fix  and  determine  the  respec- 
tive rights  and  obligations  of  the  parties  to  it,  and  the  decree 
must  therefore  be  sufficiently  definite  and  certain  in  its  terms 
to  do  this.  A  decree  so  uncertain  and  indefinite  as  to  leave 
the  controversy  between  the  parties  unsettled,  and  their  re- 
spective rights  and  obligations  undetermined,  is  void.16  The 
main  question  to  be  decided  is,  of  course,  the  quantity  of  wa- 
ter to  which  each  party  is  entitled,  and  this  must  be  stated 
with  certainty,  or  in  terms  which  can  be  rendered  certain. 
In  a  number  of  states  the  mode  of  measuring  water  and  the 
unit  of  measurement  is  prescribed  by  statute.17  Where  such 
mode  or  unit  is  prescribed,  it  seems  that  the  decree,  in  stat- 
ing the  quantity  of  water,  should  conform  to  the  statutory 
requirements.  In  Colorado  the  statute  provides  that  the  de- 
cree shall  describe  the  amount  of  water  awarded  to  a  particu- 
lar ditch  by  cubic  feet  per  second  of  time,  if  the  evidence 
shall  show  sufficient  data  to  ascertain  such  cubic  feet,  and,  if 
not,  by  width,  depth  and  grade,  and  such  other  description  as 
will  most  certainly  and  conveniently  show  the  amount  of  wa- 
ter intended  as  the  capacity  of  the  ditch.18  As  a  rule,  the 

IB  In  re  Huntley,  85  Fed.  889;  Dougherty  v.  Haggin,  56  Cal.  522; 
Lakeside  Ditch  Co.  v.  Crane,  80  Cal.  181,  22  Pac.  76;  Barrows  v. 
Fox,  98  Cal.  63,  32  Pac.  811;  Riverside  Water  Co.  v.  Sargent,  112 
Cal.  230,  44  Pac.  560;  Steinberger  v.  Meyer  (Cal.,  1900)  62  Pac.  483; 
Drake  v.  Earhart,  2  Idaho,  716,  23  Pac.  541;  Authors  v.  Bryant,  22 
Nev.  242,  38  Pac.  439;  Smith  v.  Phillips,  6  Utah,  376,  23  Pac.  932; 
Nephi  Irr.  Co.  v.  Jenkins,  8,  Utah,  369,  31  Pac.  986;  Nephi  Irr.  Co. 
v.  Vickers,  15  Utah,  374,  49  Pac.  301. 

IT  Consult  statutes  in  Appendix. 

is  Mills'  Ann.  St.  §  2403. 

(171) 


§  97  LAW  OF  IRRIGATION.  [Ch.  9 

finding  or  decree  should,  if  possible,  be  made  definite  by  stat- 
ing the  quantity  of  water  in  some  recognized  and  invariable 
unit  of  measure,  as  in  defined  inches  or  gallons,  and  not  with 
reference  to  the  capacity  of  the  ditch ;  for  the  carrying  capac- 
ity of  a  ditch  is  subject  to  change, being  affected  by  the  nature 
of  the  soil  through  which  it  passes,  the  rapidity  and  conse- 
quent scouring  force  of  the  current,  the  care  it  receives,  etc., 
so  that  a  finding  or  decree  that  a  party  is  entitled  to  have  his 
ditch  supplied  to  its  full  capacity  may  lead  to  future  disputes 
and  litigation.  And  in  California  (where  there  is  no  stat- 
ute similar  to  the  Colorado  statute  above  stated)  such  a  judg- 
ment has  been  held  bad  for  uncertainty.19  Where  the  decree 
states  the  quantity  of  water  awarded  in  inches,  it  must  show 
further  what  kind  of  an  inch  is  intended,  for  the  term  "inch" 
is  itself  indefinite.  Thus,  a  decree  that  a  party  is  entitled  to 
"150  inches,  statutory  measurement,"  where  it  nowhere  ap- 
pears what  statutory  measurement  is  referred  to,  is  void.20 
So,  also,  where  the  plaintiff  alleged  in  his  complaint  that  he 
was  entitled  to  "five  hundred  inches,  measured  under  a  four- 
inch  pressure,"  of  the  waters  in  controversy,  a  verdict  of  the 
jury  that  he  was  entitled  to  "forty  inches,  miners'  measure- 
ment," was  held  void  for  uncertainty,  since  the  term  "miners' 
measurement"  has  no  fixed  meaning,  and  the  miners'  inch 
varies  in  different  localities.21  But  although  the  findings 
are  not  explicit,  if  they  will  support  the  judgment,  they  will 
not  be  disturbed.  Thus,  where  it  was  found  that  the  claim- 
ants were  entitled  to  all  the  water  of  the  stream,  which  was 

i»  Lakeside  Ditch  Co.  v.  Crane,  80  Cal.  182,  22  Pac.  76;  Riverside 
Water  Co.  v.  Sargent,  112  Cal.  230,  44  Pac.  560. 

20  in  re  Huntley,  85  Fed.  889. 

21  Dougherty  v.  Haggin,  56  Cal.  522. 

(172) 


Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §   97 

much  less  than  the  amount  claimed,  it  was  held  that  a  finding 
that  the  stream  carried  a  certain  number  of  inches  would 
not  be  disturbed  for  failure  to  specify  under  what  pressure 
the  water  was  measured.22  A  decree  awarding  a  party 
enough  water  to  irrigate  a  stated  number  of  acres  has  been 
held  void  for  uncertainty  where  it  did  not  otherwise  appear 
how  much  water  this  would  be.23  But  such  a  decree  is  suf- 
ficient where  the  quantity  of  water  so  designated  is  capable 
of  being  definitely  ascertained.24  A  decree  awarding  a  party 
the  use  of  "one  good  irrigation  stream  of  water"  is  fatally 
defective  for  want  of  certainty.25 

Where,  in  an  action  to  quiet  title  to  the  right  to  use  the  wa- 
ter of  a  stream,  the  plaintiff  has  been  awarded  all  the  water 
to  which  he  is  entitled,  he  cannot  complain  that  the  decree  is 
indefinite  as  to  the  amount  awarded  to  the  defendant.26 

The  decree  should  state  at  what  point  the  parties  may  take 
the  water  awarded  to  them,  as  by  stating  the  quantity  to 
which  each  party  is  entitled  at  the  place  where  his  ditch  taps 
the  stream.27 

The  findings  of  the  court  must  be  consistent ;  and  findings 
that  one  of  the  parties  acquired  a  water  right  by  appropria- 
tion of  a  certain  date,  and  the  other  party  obtained  a  right  to 
the  water  by  a  later  appropriation,  and  also  by  adverse  pos- 

22  Drake  v.  Earhart,  2  Idaho,  716,  23  Pac.  541. 

23  Nephi  Irr.  Co.  v.  Vickers,  15  Utah,  374,  49  Pac.  301. 

24  Broadmoor  Dairy  &  Live  Stock  Co.  v.  Brookside  Water  &  Imp. 
Co.,  24  Colo.  541,  52  Pac.  792;  McLure  v.  Koen,  25  Colo.  284,  53  Pac. 
1058;  Holman  v.  Pleasant  Grove  City,  8  Utah,  78,  30  Pac.  72. 

25  Smith  v.  Phillips,  6  Utah,  376,  23  Pac.  932. 

26  Power  v.  Switzer,  21  Mont.  523,  55  Pac.  32. 

27  Kleinschmidt  v.  Greiser,  14  Mont.  484,  37  Pac.  5. 

(173) 


§§  98-99  LAW  OF  IRRIGATION.  [Ch.  9 

session,  being  inconsistent,  will  not  support  a  judgment  in 
favor  of  the  latter  party.28 

§    98.    The  Doctrine  of  Res  Judicata. 

The  decrees  of  a  court  of  competent  jurisdiction  in  a  suit 
for  the  adjudication  of  water  rights,  when  final  and  unre- 
versed,  like  decrees  in  other  suits,  are  res  judicata  of  the  sub- 
ject-matter of  the  suits,  as  between  the  parties  thereto  and 
their  successors  in  interest.29  And  this  is  true,  whether  the 
court  based  its  opinion  and  decree  upon  a  correct  or  an  erro- 
neous view  either  of  the  law  or  of  the  facts.  The  decrees  are 
not  conclusive,  however,  as  to  matters  which  might  have  been 
decided  therein ;  but  only  as  to  such  matters  as  were  in  fact 
decided,  within  the  issues  raised  by  the  pleadings.30  Nor  are 
such  decrees  binding  on  persons  who  were  not  parties  there- 
to.31 

£    99.    Statutory  Adjudication— Colorado  System— Generally. 

In  Colorado  the  adjudication  of  priorities  between  irriga- 
tors  has  not  been  left  to  the  ordinary  mode  of  procedure  of 
the  courts.  In  1879  the  legislature,  finding  the  ordinary  pro- 
cesses of  law  and  the  actions  then  known  to  the  courts  too  ex- 
pensive and  also  inadequate  to  meet  the  novel  conditions  in- 
cident to  the  appropriation  of  water  for  the  purposes  of  irri- 

23  Johnson  v.  Bielenberg,  14  Mont.  506,  37  Pac.  12. 

20  Union  Mill  &  Min.  Co.  v.  Dangberg,  81  Fed.  73 ;  Neil  v.  Tolman, 
12  Ore.  289,  7  Pac.  103.  See  post,  §  101. 

so  Union  Mill  &  Min.  Co.  v.  Dangberg,  81  Fed.  73.  But  see,  as  to 
the  conclusiveness  of  a  former  judgment  as  to  matters  which 
might  have  been  litigated  and  decided,  Neil  v.  Tolman,  12  Ore.  289, 
7  Pac.  103. 

si  Tucker  v.  Jones,  8  Mont.  225,  19  Pac.  571. 


•Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §    99 

gation,  enacted  a  statute  which,  with  the  supplemental  act  of 
1881,  furnishes  an  elaborate  system  of  procedure  for  the  set- 
tlement of  all  questions  of  priority  of  appropriation  of  water 
between  the  owners  of  ditches,  canals  and  reservoirs  taking 
water  from  the  same  stream  or  its  tributaries  within  the  same 
water  district.32  A  statutory  proceeding  to  adjudicate  prior- 
ities under  these  acts  is  not  an  ordinary  civil  action  or  pro- 
ceeding, but  is  a  proceeding  sui  generis,  to  which  the  rules 
governing  ordinary  civil  actions  are  not  always  applicable.33 

The  act  of  1881  completes  and  supplements  the  act  of 

1879,  and  "the  two  together  constitute  a  complete  system  of 

procedure,  that  in  operation  has  been  found  so  salutary  and 

free  from  unnecessary  expense  as  to  command  the  tacit  in- 

-dorsement  of  all  subsequent  legislatures."34 

The  acts  provide  substantially  that  whenever  any  one  or 
more  persons,  associations  or  corporations  interested  as  own- 
ers of  any  ditch,  canal  or  reservoir  in  any  water  district,  shall 
present  to  the  district  court  of  any  county  having  jurisdic- 
tion of  priorities  in  such  district,  or  to  the  judge  thereof  in 

32  Mills'  Ann.  St.   §§  2400-2439.     See,  generally,  as  to  the  scope 
and   effect   of  these   acts,   Union   Colony   v.   Elliott,   5    Colo.    371; 
Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac.  278;    Sterling  Irr.  Co.  v. 
Downer,  19  Colo.  595,  36  Pac.  787;  Louden  Irr.  Canal  Co.  v.  Handy 
Ditch  Co.,  22  Colo.  102,  43  Pac.  535;  Broadmoor  Dairy  &  Live  Stock 
Co.  v.  Brookside  Water  &  Imp.  Co.,  24  Colo.  541,  52  Pac.  792.     In 
Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth,  13  Colo. 
Ill,   21   Pac.   1028,  Elliott,  J.,  said  of  these  acts:     "They  are  in  the 
nature  of  police  regulations  to  secure  the  orderly  distribution  of 
water  for  irrigation  purposes,  and  to  this  end  they  provide  a  sys- 
tem of  procedure  for  determining  the  priority  of  rights  as  between 
the  carriers." 

33  Sterling  Irr.  Co.  v.  Downer,  19  Colo.  595,  36  Pac.  787. 

34  Louden  Irr.  Canal  Co.  v.  Handy  Ditch  Co.,  22  Colo.  102,  43  Pac. 
535. 

(175) 


§  99  LAW  OF  IRRIGATION.  [Ch.  9 

vacation,  a  motion,  petition  or  application  in  writing,  moving 
or  praying  said  court  to  proceed  to  the  adjudication  of  the 
priorities  to  the  use  of  water  for  irrigation  between  the  sev- 
eral ditches,  etc.,  in  such  district,  the  court,  or  judge  in  vaca- 
tion, shall,  without  unnecessary  delay,  in  case  he  shall  deem 
it  practicable  to  proceed  in  open  court,  appoint  a  day  in  some 
regular  or  special  term  of  such  court  for  commencing  to  hear 
and  take  evidence  in  such  adjudication,  and  shall  at  such 
time  proceed  to  hear  all  evidence  that  may  be  offered  by  or 
on  behalf  of  any  person,  association  or  corporation  interested 
in  any  ditch,  canal  or  reservoir  in  such  district,  either  as  own- 
er of  or  consumer  therefrom,  in  support  of  or  against  any 
claim  of  priority  of  appropriation  by  means  of  any  ditch, 
canal  or  reservoir,  or  by  any  enlargement  or  extension  there- 
of in  such  district,  and,  upon  all  the  evidence  and  the  argu- 
ments of  the  parties  or  their  counsel,  shall  make  and  cause  to 
be  entered  a  decree  determining  and  establishing  the  several 
priorities  concerning  which  testimony  shall  have  been  offered. 
Parties  owning  or  claiming  any  interest  in  any  ditch,  canal 
or  reservoir  within  any  water  district  are  required  to  file  with 
the  clerk  of  the  district  court  having  jurisdiction  a  statement 
of  claim  under  oath  containing  their  names  and  addresses, 
the  name  and  general  description  of  any  ditch,  canal  or  res- 
ervoir claimed,  the  name  of  the  stream  from  which  its  supply 
of  water  is  drawn,  the  date  of  appropriation  by  original  con- 
struction, or  by  enlargement  or  extension,  the  amount  of  wa- 
ter claimed,  the  capacity  of  the  ditch,  canal  or  feeder,  and  the 
number  of  acres  lying  under  and  being  or  proposed  to  be  irri- 
gated by  water  from  such  ditch,  canal  or  reservoir.  No  per- 
son, association  or  corporation  representing  any  ditch,  canal 
or  reservoir  is  permitted  to  give  or  offer  any  evidence  before 
a  referee  until  such  statement  be  filed  by  him  or  them. 
(176) 


(Jh.  9]  ADJUDICATION  OF  PRIORITIES.  §  99 

The  district  court,  or  judge  thereof  in  vacation,  has  power 
to  make  such  orders  and  rules  as  may  be  necessary  and  ex- 
pedient touching  the  proceedings  in  court  or  before  a  referee. 

Notice  of  proceedings  is  required  to  be  given  to  all  parties 
interested;  and  provision  is  made  for  a  review  and  reargu- 
ment  of  decrees  rendered,  and  also  for  appeals  therefrom  to 
the  supreme  court.  The  statute  also  provides  for  adjudica- 
tion before  a  referee  where  the  court  or  judge  to  whom  ap- 
plication is  made  deems  it  impracticable  or  inexpedient  to 
proceed  in  open  court. 

The  acts  provide  for  the  adjudication  of  priorities  of  water 
rights  for  irrigation  purposes  only,  and  the  statutory  proceed- 
ings cannot  be  resorted  to  for  the  purpose  of  determining  the 
claims  of  parties  to  the  use  of  water  for  domestic  or  other 
purposes.35 

An  adjudication  of  priorities,  within'  the  meaning  of  the 
irrigation  acts,  is  the  judicial  determination  of  the  claims  of 
different  parties  to  the  use  of  water  for  irrigation  within  the 
same  water  district.  The  acts  provide  for  a  separate  adjudi- 
cation of  priorities  for  each  district,  but  not  for  the  settlement 
of  priorities  beyond  the  limits  of  the  district.  And  where  a 
district  is  divided,  by  an  act  of  the  legislature  without  any 
saving  clause,  during  the  pendency  of  adjudication  proceed- 
ings, a  new  proceeding  becomes  necessary  in  the  new  district 
for  the  adjudication  of  the  rights  of  all  parties  having  ditches 
in  the  new  district.36 

The  adjudication  statutes  were  not  intended  to  have,  and 
do  not  have,  any  application  beyond  the  limits  of  the  state; 

35  Platte  Water  Co.  v.  Northern  Colo.  Irr.   Co.,   12  Colo.  525,  21 
Pac.  711. 

se  Sterling  Irr.  Co.  v.  Downer,  19  Colo.  595,  36  Pac.  787. 


§  99  LAW  OF  IRRIGATION.  [Ch.  9 

and  where  a  ditch  has  its  point  of  diversion  in  Colorado,  but 
•extends  into  another  state  or  territory,  carrying  water  for  the 
irrigation  of  lands  lying  in  such  state  or  territory,  priorities 
will  not  be  decreed  to  such  ditch  in  a  proceeding  under  the 
statute  for  the  irrigation  of  such  lands.37 

Proceedings  under  the  adjudication  act  are  for  the  sole 
purpose  of  ascertaining  and  adjudicating  the  priorities  of 
right  to  the  use  of  water  between  the  several  ditches,  canals 
and  reservoirs  in  the  same  water  district.  The  statute  in- 
vests the  court  with  jurisdiction  to  establish  the  rank  of  the 
.several  ditches,  etc.,  with  relation  to  each  other,  based  upon 
•the  different  dates  of  appropriation,  the  quantity  of  water 
appropriated,  and  the  means  employed  to  utilize  it,  and  to 
.award  to  each  the  priority  to  which  it  may  be  entitled;  but 
it  does  not  authorize  inquiry  into  the  relative  rights  of  co- 
•claimants  in  the  same  ditch,  or  any  adjustment  of  their 
•disputes  among  themselves.38  The  decree  is  intended  to 
.settle  the  priority  and  extent  of  appropriation  of  each  ditch, 
but  not  to  designate  the  person  or  persons  entitled  to  the 
control  of  the  ditch  or  the  use  of  the  water  appropriated 
thereby.39 

Any  person  whose  rights  may  be  affected  by  an  adjudi- 
cation of  priorities  is  entitled  to  be  made  a  party  to  the  pro- 
ceedings.40 

In  a  suit  to  determine  priorities  of  right  to  the  use  of 
water  for  irrigation,  whether  the  suit  be  the  statutory  pro- 
ceeding or  a  suit  in  equity,  it  is  not  sufficient  for  the  plain- 

"  Lamson  v.  Vailes  (Colo.  Sup.,  1900)  61  Pac.  231. 
ss  Putnam  v.  Curtis,  7  Colo.  App.  437,  43  Pac.  1056. 

39  Oppenlander  v.  Left  Hand  Ditch  Co.,  18  Colo.  142,  31  Pac.  854. 

40  Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac.  278. 

(178) 


Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §   100 

tiff  to  allege  in  his  complaint  merely  that  he  has  the  pri- 
ority of  right.  This  is  a  legal  conclusion.  He  must  specifi- 
cally aver  all  the  substantive  facts  necessary  to  constitute 
such  priority.  The  complaint  should  further  state  the  ca- 
pacity of  the  irrigation  works,  and  the  quantity  of  water 
appropriated  thereby,  and  applied  to  a  beneficial  use,  with 
such  definiteness  that  a  decree  may  be  based  upon  it.41 

§    100.    Same— Jurisdiction  of  Courts, 

Prior  to  the  acts  of  1879  and  1881,  the  district  courts 
of  the  state  were  by  the  state  constitution  clothed  with 
original  jurisdiction  of  all  causes,  both  at  law  and  in  equi- 
ty,42 and  they  therefore  had  full  and  complete  jurisdiction 
to  hear  and  determine  water  priorities.  By  the  act  of 
1879,  jurisdiction  for  the  purpose  of  hearing,  adjudicating 
and  settling  all  questions  concerning  the  priority  of  appro- 
priation of  water  between  ditch  owners  drawing  water  from 
the  same  stream  or  its  tributaries  within  the  same  water 
district,  and  all  other  questions  of  law  and  of  right  growing 
out  of  or  involved  in  or  connected  therewith,  is  vested  ex- 
clusively in  the  district  court  of  the  proper  county.  Where 
a  water  district  extends  into  two  or  more  counties,  the  dis- 
trict court  of  the  county  in  which  the  first  regular  term 
after  the  first  day  of  December  in  each  year  shall  soonest 
occur  shall  be  the  proper  county  in  which  to  commence 
proceedings;  but  where  such  proceedings  shall  be  once  com- 
menced by  the  entry  of  an  order  appointing  a  referee,  such 
court  shall  thereafter  retain  exclusive  jurisdiction  of  the 

41  Church  v.  Stillwell,  12  Colo.  App.  43,  54  Pac.  395.  See,  also, 
Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth,  13  Colo. 
Ill,  21  Pac.  1028. 

*2  Const.  Colo.  art.  6,  §  11. 

(179) 


§  101  LAW  OF  IRRIGATION.  [Ch.  9 

whole  subject  until  final  adjudication  thereof  is  had.43  The 
acts  of  1879  and  1881  were  passed  for  the  purpose  of  es- 
tablishing a  system  of  procedure  whereby  the  appropria- 
tors  of  water  on  any  particular  stream  could  have  their 
priorities  and  rights  determined  in  one  proceeding,  and  they 
do  not  attempt  to  limit  or  extend  the  jurisdiction  of  the 
district  court  as  to  such  rights.44  Where  a  district  court 
of  one  county  acquires  jurisdiction  of  a  suit  for  the  adjudi- 
cation of  priorities  by  the  commencement  of  proceedings 
therein,  such  court,  by  the  express  provision  of  the  statute, 
as  above  stated,  has  exclusive  jurisdiction,  and  the  district 
court  of  another  county  in  the  same  water  district  has  no 
jurisdiction  of  the  cause.45  But  one  \vho  has, been  a  party 
to  adjudication  proceedings  in  the  district  court  of  one  coun- 
ty, and,  without  in  any  manner  questioning  the  jurisdiction 
of  that  court  to  entertain  the  proceedings,  has  submitted  to 
the  adjudication  of  his  rights  therein,  and  has  for  several 
years  enjoyed  the  right  then  decreed  to  him,  will  not  be  per- 
mitted, in  a  subsequent  action  in  another  county  in  the  same 
district,  to  question  the  jurisdiction  of  the  former  court,  on 
the  ground  that  proceedings  had  previously  been  instituted 
in  the  court  in  which  the  later  action  was  brought.46 

§    101.    Same— The  Decree. 

After  hearing  the  testimony  and  arguments  of  the  parties 
or  their  counsel,  and  determining  the  matters  put  in  evi- 

43  Mills'  Ann.  St.  §  2400. 

44  Broadmoor  Dairy  &  Live  Stock  Co.  v.  Brookside  Water  &  Imp. 
Co.,  24  Colo.  541,  52  Pac.  792. 

45  Louden  Irr.  Canal  Co.  v.  Handy  Ditch  Co.,  22  Colo.  102,  43  Pac. 
535;  Presbyterian  College  v.  Poole,  25  Colo.  50,  52  Pac.  1103. 

46  Handy  Ditch  Co.  v.  South  Side  Ditch  Co.  (Colo.  Sup.,  1899)  58 
Pac.  30. 

(180) 


Oh.  9J  ADJUDICATION  OF  PRIORITIES.  §  1Q1 

dence,  the  court  is  required  to  make  and  cause  to  be  entered 
a  decree  determining  and  establishing  the  several  priorities 
of  right  by  appropriation  of  water  of  the  several  ditches, 
canals  and  reservoirs  in  the  water  district,  concerning  which 
testimony  shall  have  been  offered,  each  according  to  the  time 
of  its  construction  and  enlargement,  or  enlargements  or  ex- 
tensions, designating  the  amount  of  water  appropriated 
in  each  case  by  cubic  feet  per  second  of  time,  if  the  evidence 
shall  show  sufficient  data  to  ascertain  such  cubic  feet,  and, 
if  not,  by  width,  depth  and  grade,  and  such  other  description 
as  will  most  certainly  and  conveniently  show  the  amount 
of  water  intended  as  the  capacity  of  such  ditch,  canal  or 
reservoir. 

Each  interested  party  is  entitled  to  receive  from  the  clerk, 
oi-  payment  of  a  reasonable  fee  therefor,  a  certificate  under 
seal,  showing  the  priority  decreed  to  him,  which  certificate  is 
is  ^6  be  exhibited  to  the  water  commissioner  of  the  district, 
who  shall  make  an  abstract  thereof  in  a  book,  and  shall 
•constitute  his  warrant  of  authority  for  regulating  the  flow 
of  water  in  relation  to  that  particular  ditch,  canal  or  reser- 
voir. Said  certificate  shall  also  be  recorded  in  the  records 
of  each  county  into  which  the  ditch,  canal  or  reservoir  to 
which  it  relates  shall  extend,  and  the  certificate  of  record 
thereof,  or  a  duly  certified  copy  of  such  record,  shall  be 
prima  facie  evidence  of  so  much  of  the  decree  as  shall  be  re- 
cited therein.4' 

47  Mills'  Ann.  St.  §§  2403,  2404.  It  is  further  provided  that  "the 
court,  in  making  such  decree,  as  aforesaid,  shall  number  the  sev- 
eral ditches  and  canals  in  the  water  district,  concerning  which  ad- 
judication is  made,  in  consecutive  order,  according  to  priority  of 
appropriation  of  water  thereby  made  by  the  original  construction 
thereof,  as  near  as  may  be,  having  reference  to  the  date  of  each 

(181) 


§  101  LAW  OF  IRRIGATION.  [Ch.  9 

The  decrees  rendered  in  adjudication  proceedings,  it 
should  be  noted,  do  not  purport  to  grant  any  new  property 
rights,  but  rather  embody,  in  permanent  form,  the  evidence 
of  those  previously  acquired.  The  rights  are  acquired  only 
by  a  lawful  appropriation,  and  are  measured  by  the  extent 
of  such  appropriation;  and  the  decree  must  award  these 
rights  in  accordance  with  the  testimony  offered  in  support 
of  each  claim,  and  the  law  governing  the  appropriation  of 
water.48 

The  district  court  has  no  authority  in  an  adjudication 
proceeding  to  give  any  definite  decree  in  favor  of  a  ditch  not 
then  completed;  and  if  such  decree  should  be  entered,  it 
seems  that  the  court  would  require  not  only  that  the  ditch 
be  completed,  but  that  the  water  running  through  it  be  ac- 

decree  as  rendered,  and  shall  also  number  the  reservoirs  in  like 
manner,  separately  from  ditches  and  canals,  and  shall  further  num- 
ber each  several  appropriation  of  water  consecutively,  beginning: 
with  the  oldest  appropriation,  without  respect  to  the  ditches  or 
reservoirs  by  means  of  which  such  appropriations  were  made, 
whether  such  appropriation  shall  have  been  made  by  means  of  con- 
struction, extension  or  enlargement,  which  number  of  each  ditch, 
canal  or  reservoir,  together  with  the  number  or  numbers  of  any 
appropriations  of  water  held  to  have  been  made  by  means  of  the 
construction,  extension  or  enlargement  thereof,  shall  be  incorpora- 
ted in  said  decree  and  certificate  of  the  clerk,  to  be  issued  to  the 
claimants,  as  provided  in  section  one  of  this  act,  so  as  to  show  the 
order  in  priority  of  such  ditch  or  canal,  and  of  such  reservoir,  and 
also  of  such  successive  appropriation  of  water  pertaining  thereto, 
for  the  information  of  the  water  commissioner  of  the  district  in 
distributing  water;  such  numbering  to  be  as  near  as  may  be  hav- 
ing reference  to  date  of  decrees  as  rendered."  Section  2408. 

48  New  Mercer  Ditch  Co.  v.  Armstrong,  21  Colo.  357,  40  Pac.  989. 
No  one  is  entitled  to  have  a  priority  adjudged  him  for  more  water 
than  he  has  actually  appropriated,  nor  for  more  than  he  actually 
needs.  Priority  of  right  must  be  limited  by  each  of  these  consid- 
erations. Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac.  278. 
(182) 


Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §   1Q1 

tuallj  applied  to  a  beneficial  use  before  awarding  to  it  any 
priority.49  To  constitute  a  valid  appropriation  of  water,  the 
water  diverted  must,  of  course,  be  applied  within  a  reason- 
able time  to  a  beneficial  use,  and  the  existence  of  this  fact 
must  be  ascertained  from  the  evidence  before  any  priority 
can  be  awarded  to  a  ditch.  It  is  not  necessary,  however,  that 
the  decree  shall  state  upon  its  face  that  the  water  appropri- 
ated was  applied  to  a  beneficial  use.50 

Parties  who  have  participated  in  the  benefits  of  a  decree, 
and  accepted  its  fruits  by  using  the  water  decreed  to  them, 
are  thereafter  estopped  from  assailing  its  validity,  and  are 
bound  by  it.51 

The  determination  of  the  court  as  to  matters  properly  em- 
bodied in  its  decree,  unless  the  proceedings  be  reopened  in 
the  manner  and  within  the  time  provided  in  the  act,  is  res 
judicata  between  the  parties,  and  the  proceedings  cannot 
be  reopened  by  one  of  the  parties,  in  the  absence  of  proof  of 
fraud,  for  the  purpose  of  making  any  material  change  or 
correction  in  the  decree.52  Thus,  a  mistake  in  the  carrying 
capacity  of  a  ditch,  as  determined  by  a  decree,  cannot  be 

49  Water  Supply  &  Storage  Co.  v.  Tenney,  24  Colo.  344,  51  Pac. 
505.  See,  also,  Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld 
Irr.  Co.,  24  Colo.  322,  51  Pac.  496. 

so  Broadmoor  Dairy  &  Live  Stock  Co.  v.  Brookside  Water  &  Imp. 
Co.,  24  Colo.  541,  52  Pac.  792. 

si  Boulder  &  Weld  County  Ditch  Co.  v.  Lower  Boulder  Ditch  Co., 
22  Colo.  115,  43  Pac.  540;  Handy  Ditch  Co.  v.  South  Side  Ditch  Co. 
(Colo.  Sup.,  1899)  58  Pac.  30. 

•••2  New  Mercer  Ditch  Co.  v.  Armstrong,  21  Colo.  357,  40  Pac.  989; 
Louden  Irr.  Canal  Co.  v.  Handy  Ditch  Co.,  22  Colo.  102,  43  Pac.  535; 
Boulder  &  Weld  County  Ditch  Co.  v.  Lower  Boulder  Ditch  Co.,  22 
Colo.  115,  43  Pac.  540;  Farmers'  Independent  Ditch  Co.  v.  Agricul- 
tural Ditch  Co.,  22  Colo.  513,  45  Pac.  444;  Montrose  Canal  Co.  v. 
Loutsenhizer  Ditch  Co.,  23  Colo.  233,  48  Pac.  532;  Water  Supply  & 

(183) 


§  101  LAW  OF  IRRIGATION.  [Qi.  9 

corrected  in  a  collateral  proceeding  after  the  statutory  time 
for  reformation  or  review  in  the  court  of  original  jurisdic- 
tion, or  for  taking  an  appeal,  has  elapsed.53  So,  also,  a  de- 
termination as  to  the  quantity  of  water  to  which  parties  to 
the  adjudication  proceedings  are  entitled  is  res  judicata,54 
But  the  decree  is  not  res  judicata  as  to  matters  not  properly 
included  therein.  Thus,  since  decrees  under  these  acts  are 
not  intended  to  determine  the  person  or  persons  entitled  to 
the  use  of  the  water  appropriated,  but  only  the  relative  pri- 
ority pertaining  to  each  ditch,  such  a  decree  is  not  res  judi- 
cata as  to  the  party  or  parties  entitled  to  the  control  of  a  par- 
ticular ditch,  or  to  the  use  of  water  conveyed  through  the 
same,  but  only  as  to  the  priority  and  amount  of  appropria- 
tion of  such  ditch.55 

The  decrees  rendered  in  adjudication  proceedings  are  not 
res  judicata  as  to  persons  not  parties  to  the  proceedings.56 

Decrees  entered  under  the  adjudication  acts,  while  not  con- 
clusive as  between  the  different  water  districts,  until  found 
otherwise  in  some  appropriate  proceeding,  are  to  be  treated 
by  the  superintendents  of  irrigation,  charged  with  the  duty 
of  distributing  water  according  to  the  decrees  rendered,  with- 
out reference  to  the  water  district  in  which  such  decrees  are 

Storage  Co.  v.  Larimer  &  Weld  Irr.  Co.,  24  Colo.  322,  51  Pac.  496. 
See  ante,  §  98. 

53  Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld  Irr.  Co.,  24 
Colo.  322,  51  Pac.  496. 

5-1  Boulder  &  Weld  County  Ditch  Co.  v.  Lower  Boulder  Ditch  Co., 
22  Colo.  115,  43  Pac.  540. 

55  Oppenlander  v.  Left  Hand  Ditch  Co.,  18  Colo.  142,  31  Pac.  854. 

58  Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac.  278.  See,  also,  Lower 
Latham  Ditch  Co.  v.  Louden  Irr.  Canal  Co.  (Colo.  Sup.,  1900)  60 
Pac.  629. 

(184) 


Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §  1Q2 

found,  as  prima  facie  correct,  and  he  must  be  governed  there- 
by and  distribute  the  water  accordingly.57 

§    102.    Same— Proceedings  before  Referee. 

If  for  any  cause  the  judge  of  the  district  court  to  whom 
application  is  made  for  an  adjudication  of  water  rights  shall 
deem  it  impracticable  or  inexpedient  to  proceed  to  hear  the 
evidence  in  open  court,  he  shall  make  an  order  appointing 
a  referee  before  whom  the  adjudication  proceedings  shall  be 
had.  The  referee  is  required  to  give  notice  to  interested 
parties  of  a  time  and  place  for  a  hearing  appointed  by  him, 
and  is  empowered  to  administer  oaths  to  witnesses,  issue 
subpoenas,  require  the  presence  of  witnesses,  take  and  hear 
testimony,  and,  generally,  to  exercise  judicial  powers  in  the 
premises.  Upon  closing  the  testimony  it  is  the  duty  of  the 
referee  to  examine  all  the  testimony  and  proofs,  and  make 
an  abstract  of  the  same,  to  make  separate  findings  of  the  facts 
connected  with  each  ditch,  etc.,  touching  which  evidence  shall 
have  been  offered,  and  to  prepare  a  draft  of  a  decree  in  ac- 
cordance with  such  findings,  similar  to  the  decrees  entered 
by  the  court  in  such  proceedings,  and  to  return  and  file  his 
report,  with  the  evidence,  abstract,  findings  and  decree,  with 
the  clerk  of  the  court.  The  report  is  then  heard  and  deter- 
mined by  the  court,  any  interested  party  having  the  privilege 
of  appearing  and  excepting  to  any  matter  in  the  findings  or 
decree.  After  the  hearing  the  court  causes  the  decree,  or  a 
modification  thereof,  or  a  new  decree,  as  it  shall  determine, 
to  be  entered  of  record.58 

5"  Farmers'  Independent  Ditch  Co.  v.  Agricultural  Ditch  Co.,  22 
Colo.  513,  45  Pac.  444. 

ss  Mills'  Ann.  St.  •§  2409  et  seq.  The  decree  of  the  referee  may 
be  modified  for  error  committed  by  him  in  his  judgment  upon  the 

(185) 


§   103  LAW  OF  IRRIGATION.  [Ch.  9 

Where  a  judge  has  appointed  a  referee  to  take  testimony, 
and  has  made  certain  rules,  in  the  exercise  of  his  judicial 
discretion,  for  the  government  of  the  referee  in  the  premises, 
a  writ  of  mandamus  will  not  be  allowed  to  compel  the  judge 
to  make  other  or  further  rules,  on  the  ground  that  those- 
made  are  inadequate  to  carry  out  the  intent  of  the  act.59 

§    103.    Same— Review  and  Appeal. 

Provision  is  made  by  the  statute  for  both  reargument  or 
review  of  any  decree,  or  an  appeal  therefrom  from  the  dis- 
trict court  to  the  supreme  court.  Thus  it  is  provided  that 
"the  district  court,  or  judge  thereof  in  vacation,  shall  have 
power  to  order,  for  good  cause  shown,  and  upon  terms  just 
to  all  parties,  and  in  such  manner  as  may  seem  meet,  a  re- 
argument  or  review,  with  or  without  additional  evidence,  of 
any  decree  made  under  the  provisions  of  this  act,  whenever 
said  court  or  judge  shall  find,  from  the  cause  shown  for  that 
purpose  by  any  party  or  parties  feeling  aggrieved,  that  the 
ends  of  justice  will  be  thereby  promoted ;  but  no  such  review 
or  reargument  shall  be  ordered  unless  applied  for  by  petition 
or  otherwise  within  two  years  from  the  time  of  entering  the 
decree  complained  of."60  This  statute,  allowing  a  review 
of  a  decree,  contemplates  that  good  cause  must  be  shown 
therefor ;  that  a  petition  for  this  purpose  must  state  a  cause 
of  action, — that  is  to  say,  it  must  state  facts  from  which  it 
appears  that  the  party  applying  for  such  reargument  and 
review  of  a  decree  has  been  aggrieved  thereby,  so  that  the 
court  to  which  the  petition  is  addressed  may  determine,  upon 
inspection,  that  if  the  facts  stated  be  true,  the  decree  should 

weight  of  the  testimony.     Dorr  v.  Hammond,  7  Colo.  79,  1  Pac.  693. 

so  Union  Colony  v.  Elliott,  5  Colo.  371. 

BO  Mills'  Ann.  St.  §  2425. 
(186) 


Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §  1Q3- 

be  modified.  A  petition  stating  only  general  allegations  and 
conclusions  of  law,  without  specifically  stating  facts  from 
which  the  court  may  determine  as  to  the  correctness  or  in- 
correctness of  the  decree  assailed,  is  insufficient.61 

The  right  of  a  party  to  have  a  decree  reopened  under  this 
statute,  in  so  far  as  it  is  based  upon  a  cause  existing  at  the 
time  the  decree  was  rendered,  is  conditioned  upon  his  having 
at  that  time  made  objection  to  it,  and  saved  an  exception  to 
an  adverse  ruling  upon  his  objection.  If  a  party  knowingly 
and  intentionally  neglects  to  apprise  the  court  of  his  objec- 
tion to  a  decree  at  the  time  it  is  rendered,  when  he  has  full 
opportunity  to  do  so,  he  may  not  afterwards  file  such  objec- 
tion, even  though  the  statute  allows  two  years  within  which 
to  file  a  petition  to  reopen  the  decree.62  The  exceptions  to  a 
decree  must  be  filed  within  the  two  years  prescribed  by  the 
statute.  And  where  a  court,  upon  a  petition  being  filed  for 
a  review  within  the  statutory  period,  entered  an  order  re- 
opening the  decree,  and  afterwards  caused  notice  to  be  served 
on  all  interested  parties,  in  response  to  which  other  parties- 
than  the  original  petitioners  filed  exceptions  more  than  two 
years  after  the  decree  was  entered,  it  was  held  that  the  court 
erred  in  entertaining  the  petitions  so  filed.  In  so  holding, 
the  supreme  court  proceeded  upon  the  theory  that  the  ad- 
judication which  the  statutory  proceedings  contemplate  re- 
sults in  and  consists  of  separate,  distinct  and  divisible  parts 
of  one  general  decree ;  there  being  as  many  such  as  there  are 
separate  ditches  or  rights  existing.  Hence,  even  though  one 

eiCrippen  v.  Burroughs  (Colo.  Sup.,  1900)  60  Pac.  487;  Rio 
Grande  Land  &  Canal  Co.  v.  Prairie  Ditch  Co.  (Colo.  Sup.,  1900)  60 
Pac.  726;  Peterson  v.  Durkee  (Colo.  App.,  1900)  62  Pac.  370. 

«2  Rio  Grande  Land  &  Canal  Co.  v.  Prairie  Ditch  Co.  (Colo.  Sup., 
1900)  60  Pac.  726. 

(187) 


§  103  LAW  OP  IRRIGATION.  [Ch.  9 

or  more  parties  affected  by  one  clause  or  subdivision  of  the 
decree  may,  by  bringing  in  proper  parties  within  the  statu- 
tory time,  ask  for  and  receive  a  modification  as  to  that  por- 
tion, this  does  not  give  the  right  to  other  persons  interested 
in,  or  whose  rights  are  established  by,  some  other  and  sep- 
arate clause  of  the  general  decree,  and  which  are  not  affected 
by  the  former,  a  right  to  ask  a  review  as  to  such  portion,  or 
to  file  exceptions  generally,  unless  within  the  statutory  time 
they  come  in  as  copetitioners,  or  are  brought  in  as  re- 
spondents.63 

After  the  expiration  of  the  time  limited  by  the  act,  the  de- 
cree cannot  be  reopened  by  a  party  thereto,  in  the  absence 
of  proof  of  fraud,  for  the  purpose  of  making  any  material 
change  or  correction  therein.64  In  a  proceeding  to  reopen 
a  decree,  the  statement  filed  by  a  claimant  in  the  adjudication 
proceedings  may  be  introduced  along  with  the  decree  to  en- 
able the  court  to  interpret  or  construe  the  decree.65 

It  is  provided  that  any  party  or  parties  representing 
ditches,  etc.,  affected  by  a  decree,  who  may  feel  aggrieved 
thereby,  may  have  an  appeal  from  the  district  court  to  the 
supreme  court  ;66  the  procedure  for  taking  such  appeal  being 

«3  Rio  Grande  Land  &  Canal  Co.  v.  Prairie  Ditch  Co.  (Colo.  Sup., 
1900)  60  Pac.  726.  In  so  holding,  Campbell,  C.  J.,  said:  "Of  course 
we  do  not  intend  to  hold  that  the  rights  of  such  other  parties  may 
be  cut  off  or  impaired  without  an  opportunity  to  be  heard,  but  only 
that  their  right  to  the  statutory  remedy  is  barred  by  failing  season- 
ably to  avail  themselves  of  it."  As  to  the  right  to  bring  an  inde- 
pendent action,  see  post,  §  104. 

64  New  Mercer  Ditch  Co.  v.  Armstrong,  21  Colo.  357.  40  Pac.  989; 
Boulder  &  Weld  County  Ditch  Co.  v.  Lower  Boulder  Ditch  Co.,  22 
Colo.  115,  43  Pac.  540. 

ss  New  Mercer  Ditch  Co.  v.  Armstrong,  21  Colo.  357,  40  Pac.  989. 

SB  The  supreme  court  has  jurisdiction  of  appeals  from  the  district 
court  in  this  case,  since  a  water  right  is  a  freehold  estate  within 
the  meaning  of  section  388  of  the  Code,  regulating  the  jurisdiction 

(188)1 


Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §   103 

prescribed  by  statute.  The  party  or  parties  joining  in  the 
appeal  must  file  in  the  district  court  a  verified  statement  of 
claim  and  other  particulars,  and  praying  an  appeal.  If,  on 
examination,  the  court  or  judge  in  vacation  finds  such  state- 
ment in  conformity  with  the  prescribed  requirements,  an  or- 
der is  made  allowing  the  appeal,  and  fixing  the  amount  of 
the  appeal  bond.  Copies  of  such  order  are  required  to  be 
served  on  the  appellees,  and  published,  and  proof  of  such 
service  and  publication  must  be  filed  with  the  clerk  of  the 
supreme  court  within  sixty  days,  and  the  transcript  of  the 
record  67  within  six  months,  after  the  appeal  is  allowed.  The 
supreme  court,  in  all  cases  in  which  judgment  is  rendered, 
and  any  part  of  the  decree  appealed  from  is  reversed,  and  in 
which  it  may  be  practicable,  shall  make  such  decree  in  the 
matters  involved  in  the  appeal  as  should  have  been  made  by 
the  district  court,  or  direct  in  what  manner  the  decree  of 
that  court  should  be  amended.68  The  mode  of  taking  ap- 
peals being  regulated  by  the  statute,  the  provisions  of  the 
Civil  Code  relative  to  appeals  do  not  apply.69 

The  provisions  of  the  statute  directly  relating  to  appeals 
are  silent  as  to  the  time  within  which  they  may  be  taken. 
From  the  other  provisions  in  the  adjudication  act,  however, 
relating  to  the  reargument  and  review  of  decrees  within  two 

of  appeals   to   the   supreme   court.     Daum   v.    Conley    (Colo.    Sup., 

1899)  59  Pac.  753.     See,  also,  La  Junta  &  L.  Canal  Co.  v.  Ft.  Lyon 
Canal  Co.,  25  Colo.  515,  55  Pac.  728.     And  see  ante,  §  72. 

67  As  to  the  transcript  of  record  and  bill  of  exceptions,  see  Mills' 
Ann.  St.  §  2429;  Kerr  v.  Dudley  (Colo.  Sup.,  1899)  58  Pac.  610; 
Daum  v.  Conley  (Colo.  Sup.,  1899)  59  Pac.  753. 

es  See,  generally,  as  to  appeals,  Mills'  Ann.  St.  §§  2427-2432. 

GO  Daum  v.  Conley  (Colo.  Sup.,  1899)  59  Pac.  753;  Upper  Platte 
&  B.  Canal  Co.  v.  Ft.  Morgan  Reservoir  &  Irr.  Co.  (Colo.  Sup., 

1900)  60  Pac.  484. 

(189) 


§  103  LAW  OF  IRRIGATION.  [Ch.  9 

years,  and  the  institution  of  original  actions  relating  to  rights 
affected  by  such  decrees  within  four  years,  it  seems  that  it 
was  the  intent  of  the  legislature  that  such  decrees  should  not 
be  disturbed  after  a  lapse  of  two  years  from  the  date  of  entry, 
except  by  such  original  actions.  It  is  accordingly  held  that, 
since  an  appeal  is  not  a  new  action,  but  a  continuation  of  the 
original,  appeals  must  be  taken  within  two  years  from  the 
time  of  entry.70  The  statement  of  claim  to  be  filed  with  the 
clerk  of  the  district  court  is  required  to  be  verified,  but  the 
statute  does  not  direct  by  whom  it  shall  be  verified,  and  the 
verification  may  be  by  appellant's  counsel.71  A  party  does 
not  waive  his  right  to  an  appeal  by  applying  for  a  rehearing 
and  review  of  the  decree  in  the  district  court.72 

Where  the  case  has  been  tried  in  the  district  court  mainly 
upon  proofs  taken  and  reported  by  a  master  or  referee,  it  is 
the  duty  of  the  supreme  court,  on  appeal,  to  sift  and  weigh 
all  the  evidence,  with  a  view  to  a  just  determination,  unin- 
fluenced by  the  proposition  that  the  court  below  had  superior 
facilities  to  judge  of  the  credibility  of  witnesses.73  But 
where  a  case  was  not  tried  wholly  before  a  master  or  referee, 
or  upon  testimony  so  taken,  but  was  heard  upon  the  testi- 
mony taken  upon  a  prior  trial  of  the  case,  and  upon  oral  tes- 
timony introduced  at  the  trial,  this  principle  does  not  apply, 
and  the  case  comes  rather  within  the  general  principle  that 
the  appellate  court  will  disturb  neither  the  verdict  of  the 
jury  nor  the  finding  of  the  trial  court,  unless  it  satisfactorily 

"o  Upper  Platte  &  B.  Canal  Co.  v.  Ft.  Morgan  Reservoir  &  Irr. 
Co.  (Colo.  Sup.,  1900)  60  Pac.  484.  See,  also,  Daum  v.  Conley 
(Colo.  Sup.,  1899)  59  Pac.  753. 

71  Daum  v.  Conley  (Colo.  Sup.,  1899)  59  Pac.  753. 

72  id.     See,  also,  Kerr  v.  Dudley  (Colo.  Sup.,  1899)  58  Pac.  610. 
"  Sieber  v.  Frink,  7  Colo.  148,  2  Pac.  901;  Childs  v.  Lowenbruck, 

2  Colo.  App.  92,  29  Pac.  1014. 
(190) 


Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §  1Q4 

appears  that  the  verdict  or  judgment  is  against  the  manifest 
weight  of  the  evidence,  or  was  the  result  of  improper  influ- 
ences, motives  or  considerations.74 

A  decree  based  on  a  statute  subsequently  declared  invalid 
will  be  reversed  on  appeal.75 

§    104.    Same— Independent  Action. 

The  acts  of  1879  and  1881,  while  affording  a  complete 
system  of  procedure  for  the  adjudication  of  priorities,  do  not, 
nevertheless,  take  away  the  right  to  maintain  an  independent 
action  for  this  purpose,  such  as  existed  prior  to  the  passage 
of  these  acts.  It  is  expressly  provided  that  "nothing  in  this 
.act  [of  1881],  or  in  any  decree  rendered  under  the  provisions 
thereof,  shall  prevent  any  person,  association  or  corporation 
from  bringing  and  maintaining  any  suit  or  action  whatsoever 
hitherto  allowed  in  any  court  having  jurisdiction,  to  deter- 
mine any  claim  of  priority  of  right  to  water,  by  appropriation 
thereof,  for  irrigation  or  other  purposes,  at  any  time  within 
four  years  after  the  rendering  of  a  final  decree  under  this 
act  in  the  water  district  in  which  such  rights  may  be 
claimed."76  But,  "after  the  lapse  of  four  years  from  the 

74  Bugh  v.  Rominger,  15  Colo.  452,  24  Pac.  1046.  See,  also  X.  Y. 
Irrigating  Ditch  Co.  v.  Buffalo  Creek  Irr.  Co.,  25  Colo.  529,  55  Pac. 
-720,  affirming  9  Colo.  App.  438,  49  Pac.  264. 

^  Rio  Grande  Land  &  Canal  Co.  v.  Prairie  Ditch  Co.  (Colo.  Sup., 
1900)  60  Pac.  726. 

76  Mills'  Ann.  St.  §  2434.  The  section  continues  with  this  pro- 
viso: "Save  that  no  writ  of  injunction  shall  issue  in  any  case  re- 
straining the  use  of  water  for  irrigation  in  any  water  district  where- 
in such  final  decree  shall  have  been  rendered,  which  shall  effect 
[affect]  the  distribution  or  use  of  water  in  any  manner  adversely 
to  the  rights  determined  and  established  by  and  under  such  decree, 
but  injunctions  may  issue  to  restrain  the  use  of  any  water  in  such 
district  not  affected  by  such  decree,  and  restrain  violations  of  any 

(191) 


§  104  LAW  OF  IRRIGATION.  [Ch.  9 

time  of  rendering  a  final  decree,  in  any  water  district,  all 
parties  whose  interests  are  thereby  affected  shall  be  deemed 
and  held  to  have  acquiesced  in  the  same,  except  in  case  of 
suits  before  then  brought,  and  thereafter  all  persons  shall 
be  forever  barred  from  setting  up  any  claim  to  priority  of' 
rights  to  water  for  irrigation  in  such  water  district  adverse 
or  contrary  to  the  effect  of  such  decree."77  It  is  held  that 
the  right  to  bring  an  independent  action  under  these  pro- 
visions may  be  exercised  only  by  a  person,  association  or 
corporation  not  a  party  to  the  prior  proceeding,  or,  if  a  party 
thereto,  whose  right  of  action  grows  out  of  matters  arising 
subsequent  to  the  decree.78 

The  failure  of  the  claimant  of  a  water  right  to  file  the 
statement  of  claim  required  previous  to  a  statutory  adjudica- 
tion of  his  rights,  and  to  apply  for  a  review  of  the  decree 
of  the  district  court  within  the  prescribed  period  of  two 
years,  does  not  raise  the  presumption  that  he  had  no  rights, 
or  that  he  intended  to  waive  any  rights  he  may  have  had; 
but  under  the  sections  set  out  above,  he  may,  within  four 
years,  maintain  an  action  to  have  a  decree  amended  so  as  to 

right  thereby  established,  and  the  water  commissioner  of  every 
district  where  such  decree  shall  have  been  rendered  shall  continue 
to  distribute  water  according  to  the  rights  of  priority  determined 
by  such  decree,  notwithstanding  any  suits  concerning  water  rights 
in  such  district,  until  in  any  suit  between  parties  the  priorities  be- 
tween them  may  be  otherwise  determined,  and  such  water  commis- 
sioner have  official  notice  by  order  of  the  court  or  judge  determin- 
ing such  priorities,  which  notice  shall  be  in  such  form  and  so  given 
as  the  said  judge  shall  order." 

77  Mills'  Ann.  St.  §  2435. 

78  Montrose  Canal  Co.  v.  Loutsenhizer  Ditch  Co.,  23  Colo.  233,  48 
Pac.  532;  Handy  Ditch  Co.  v.  Southside  Ditch  Co.  (Colo.  Sup.,  1899) 
58  Pac.  30.     But  see  Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac.  278. 

(192) 


Ch.  9]  ADJUDICATION  OF  PRIORITIES.  §    1Q5 

award  him  the  priority  to  which  he  may  be  entitled.79 

The  limitation  of  four  years  set  by  the  statute  does-  not 
apply  to  an  action  to  set  aside  a  decree  obtained  by  fraud. 
Such  an  action  is  not  brought  to  determine  the  priority  of 
appropriation  of  water,  but  is  an  action  for  relief  on  the 
ground  of  fraud,  and  if  any  statute  of  limitation  is  applica- 
ble, it  is  the  statute  providing  that  bills  for  relief  on  the 
ground  of  fraud  shall  be  filed  within  three  years  after  the 
discovery  of  the  fraud.80 

S    105.    Same— Some  Observations  on  the  Colorado  System. 

The  Colorado  system  for  the  adjudication  of  water  rights, 
considered  in  the  preceding  sections,  is  noteworthy  as  the 
first  important  attempt  made  by  any  state  legislature  to  pro- 
vide a  special  proceeding  for  the  determination  of  contro- 
versies over  water  rights.  It  is  further  noteworthy  for  the 
reason  that  it  has  stood  for  twenty  years  without  any  change 
and  with  no  material  addition.  This  indicates  the  com- 
mendable thoroughness  with  which  the  persons  who  drafted 
these  important  statutes  did  their  work,  and  the  surprising 
forbearance  of  later  legislatures  in  not  tampering  with  the 
work  of  their  predecessors.  This  exception  to  the  general 
rule  may  well  be  contemplated  with  satisfaction  by  the  legis- 
lature-burdened people  of  the  western  states,  who  have  suf- 
fered so  much  from  the  deplorable  zeal  of  their  lawmakers 
to  earn  their  salaries. 

The  statutes,  however,  might  be  improved  in  some  respects. 
In  the  first  place,  the  sections  of  the  act  of  1881  are  arranged 
with  a  striking  disregard  of  the  first  principles  of  logical  or- 

™  Greer  v.  Heiser,  16  Colo.  306,  26  Pac.  770. 

so  Peck  Lateral  Ditch  Co.  v.  Pella  Irr.  Ditch  Co.,  19  Colo.  222,  34 
Pac.  988. 

(193) 


§    105  LAW   OF    IRRIGATION.  [Ch.  9 

•der.  Thus,  the  provision  requiring  publication  of  the  act, 
which  would  naturally  come  at  the  end,  along  with  the  repeal 
clause,  appears  as  sections  two  and  three.  Again,  the  two 
.sections  prescribing  the  contents  of  the  decree  are  separated 
by  four  sections.  So,  also,  a  special  division  of  the  act  is 
devoted  to  proceedings  before  a  referee,  and  yet,  under  the 
division  "General  Provisions,"  a  section  gives  the  right  to 
complain  of  the  conduct  of  the  referee ;  while  under  the  title 
'"Appeals,"  provision  is  made  for  the  removal  of  the  referee, 
and  also  for  his  compensation.  Other  examples  might  be 
given. 

The  foregoing  criticism  is  directed  at  the  form  of  the  act. 
But  while  its  absurd  arrangement  offends  the  logical  sense 
of  every  intelligent  reader,  it  does  not  imperil  the  rights  of 
the  parties  to  the  proceedings;  and  it  is  believed  that  the 
.act  furnishes  ample  protection  to  water  rights  as  they  exist 
at  the  time  of  the  decree. 

In  determining  water  rights,  the  courts  must,  of  course,  be 
governed  by  the  general  laws  of  appropriation  as  applied  to 
the  existing  facts.  Every  party  must  be  awarded  so  much 
water  as  he  may  claim  by  virtue  of  a  prior  appropriation, 
.and  which  he  needs  for  the  irrigation  of  the  land  for  the 
benefit  of  which  the  appropriation  was  made.  His  right  is 
measured  by  his  need,  as  much  as  by  any  other  consideration. 
The  quantity  of  water  needed  to  irrigate  his  land,  as  well  as 
the  other  facts  necessary  to  the  establishment  of  his  right, 
may  be  shown  by  the  evidence.  The  adjudication  is  made 
upon  the  supposition  that  the  facts  so  established  remain  un- 
changed, and  hence  that  a  decree  correct  as  to  the  quantity 
of  water  awarded  at  the  time  the  decree  is  entered  will  be 
correct  for  all  future  time. 
(194) 


Ch.  9j  ADJUDICATION  OF  PRIORITIES.  §   105 

This,  however,  is  not  the  case.  It  is  a  well-known  fact 
that  more  water  is  needed  for  the  irrigation  of  arid  land 
during  the  first  year  or  so  than  after  the  soil  has  once  become 
thoroughly  saturated  by  repeated  flooding.  Moreover,  the  loss 
of  water  from  irrigation  ditches  and  canals  by  absorption  and 
seepage  is  greater  when  such  works  are  first  constructed  than 
after  they  have  been  for  some  time  in  use.  Again,  the 
amount  of  water  needed  will  depend  very  largely  upon  the 
crop  to  be  raised, — some  crops  requiring  more  water  than 
others.  Hence  a  decree  awarding  sufficient  water  to  irrigate 
an  appropriator's  land,  as  determined  by  the  crop  then  con- 
templated, may  award  him  too  much  or  too  little  water  for 
another  season,  when  a  different  crop  is  to  be  raised. 

From  the  facts  just  stated  it  results  that  an  irrigator  may 
sometimes  be  entitled  to  claim  under  a  decree  a  quantity  of 
water  far  in  excess  of  his  needs,  yet  which  was  correctly  de- 
fined at  the  time  when  the  decree  was  rendered.  He  has  a 
perfect  right,  under  the  decree,  to  use  the  water  wastefully, 
or  for  the  irrigation  of  land  other  than,  and  in  addition  to, 
that  for  which  the  water  was  appropriated,  or  may  compel 
others  to  permit  it  to  flow  uselessly  in  the  stream,  when  it  is 
absolutely  needed  for  the  irrigation  of  their  lands,  unless 
they  are  willing  and  able  to  pay  him  for  its  use.  This  is 
wholly  in  derogation  of  the  fundamental  principles  of  the 
law  of  appropriation.  It  is  true  that  this  result  is  to  some 
extent  guarded  against  by  the  provisions  for  reopening  the 
decree,81  but  this  only  partially  overcomes  the  difficulty,  and 
has  not  proven  sufficient  to  prevent  the  occurrence  of  the 
anomalous  condition  above  suggested.  It  is  submitted  that  this 

*i  See  remarks  of  Hayt,  C.  J.,  in  Louden  Irr.  Canal  Co.  v.  Handy 
Ditch  Co.,  22  Colo.  102,  43  Pac.  535. 

(195) 


§   106  LAW  OF  IRRIGATION.  [Ch.  9 

objection  might  be  further  overcome  by  giving  to  the 
water  commissioners  power,  duly  guarded,  to  apportion  the 
water  each  season,  not  only  according  to  the  decreed  priori- 
ties of  each  appropriator,  but  also  according  to  his  needs, 
within  the  limits  set  by  the  decree,  for  that  particular  season. 
The  Colorado  system  is  open  to  a  further  objection,  in  that 
it  unnecessarily  imposes  a  great  burden  upon  the  courts. 
The  courts  are  to  some  extent  relieved  by  their  power  to  ap- 
point a  referee,  but  such  appointment  does  not  take  from 
them  the  general  supervision  of  the  proceedings. 

The  objections  here  urged  to  the  Colorado  system  seem 
to  be  satisfactorily  overcome  by  the  Wyoming  system,  to  be 
considered  in  the  next  section. 
S    106.    Statutory  Adjudication— Wyoming  System. 

In  1886  the  territorial  legislature  of  Wyoming  passed  an 
act  for  the  adjudication  of  water  rights  resembling  that  of 
Colorado,  and  a  few  adjudications  were  had  under  proceed- 
ings provided  for  by  this  act.82  This  act  has  been  since  re- 
pealed, and  an  entirely  new  system  of  adjudication  provided 
by  the  act  of  December  22,  1890,  since  amended  in  some  par- 
ticulars.83 This  act,  together  with  the  other  statutory  pro- 
visions for  the  regulation  of  the  use  of  water  throughout 
the  state,  forms  perhaps  the  most  satisfactory  system  yet  pro- 
vided by  any  state.  The  system  differs  from  that  of  other 
states  in  that  the  state  does  not  necessarily  wait  for  contro- 
versies over  water  rights  to  arise,  and  application  for  the  ad- 
judication of  such  rights  to  be  made  by  a  claimant  or  claim- 
ants, but  of  its  own  motion  institutes  proceedings,  and  de- 
termines the  priorities  and  rights  of  all  the  appropriators. 

82  See  Rev.  St.  Wyo.  1887,  §§  1331-1361. 

ss  The  act  of  1890  and  its  amendments  comprise  sections  859  to 
887  of  the  Revised  Statutes  of  1899. 

(196) 


Oh.  9]  ADJUDICATION  OF  PRIORITIES.  §  1Q6 

The  main  features  of  the  system  are  as  follows :  The  pow- 
er to  determine  priorities  is  vested  in  the  board  of  control.84 
The  statute  requires  the  board,  at  its  first  meeting,  to  make 
proper  arrangements  for  beginning  the  determination  of  the 
priorities  of  right  to  the  use  of  the  public  waters  of  the  state, 
such  determination  to  begin  on  the  streams  most  used  for 
irrigation,  and  be  continued  as  rapidly  as  practicable,  until 
all  the  claims  for  appropriation  on  record  shall  have  been 
adjudicated.  The  board  was  required  to  decide,  at  its  first 
meeting,  the  streams  to  be  first  adjudicated,  and  fix  a  time 
for  beginning  to  take  testimony,  and  to  make  such  examina- 
tions as  will  enable  them  to  determine  the  rights  of  the 
various  claimants. 

Notices  giving  the  date  when  the  engineer  will  begin  a 
measurement  of  the  stream  to  be  adjudicated,  and  the  ditches 
diverting  water  therefrom,  the  time  and  place  when  the  super- 
intendent of  the  division  in  which  the  stream  is  situated  will 
begin  taking  testimony  as  to  the  rights  of  parties  claiming 
water  from  the  stream,  are  required  to  be  published,  and 
copies  sent  by  registered  mail  to  each  party  having  a  recorded 
claim  to  the  waters  of  the  stream.  Accompanying  the  notice, 
a  blank  form  is  required  to  be  sent  to  the  claimant,  on  which 
the  claimant  is  required  to  present  in  writing,  under  oath, 
certain  specified  facts  relating  to  his  appropriation.  The 
superintendent,  or,  if  he  is  interested  in  the  water  of  the 
stream  of  his  division,  the  superintendent  of  the  next  nearest 
division,  or  the  state  engineer,  shall  take  the  testimony  at  the 
time  and  place  specified,  and  upon  the  completion  of  the  tes- 
timony it  is  required  to  be  opened  to  the  inspection  of  the 

s*  As  to  the  board  of  control,  see  post,  §  122. 

(197) 


g  106  LAW  OF  IRRIGATION.  [Oh.  9 

various  claimants  at  a  time  and  place  mentioned  in  a  notice 
thereof,  to  be  published  and  sent  by  mail  to  the  claimants. 
An  opportunity  is  provided  for  any  interested  party  to  con- 
test, before  the  superintendent  and  the  board,  the  claim  of 
any  other  persons  who  may  have  submitted  evidence  to  the 
superintendent. 

Upon  the  completion  of  the  evidence  in  the  original  hear- 
ing and  in  all  contests,  the  superintendent  is  required  to 
transmit  the  same  to  the  board.  In  the  meantime,  the  en- 
gineer or  his  assistant  is  required  to  make  an  examination 
and  measurement  of  the  stream  and  the  works  diverting 
water  therefrom,  as  well  as  of  the  irrigated  lands,  or  lands 
susceptible  of  irrigation  from  the  various  ditches  and  canals 
taking  water  from  the  stream,  which  observations  and  meas- 
urements shall  be  reduced  to  writing  and  recorded  in  his 
office,  and  he  shall  also  make  a  map  or  plat  showing  the 
course  of  the  stream,  the  location  of  each  ditch  or  canal,  and 
the  legal  subdivisions  of  lands  which  have  been  irrigated  or 
are  susceptible  of  irrigation  therefrom. 

"At  the  first  regular  meeting  of  the  board  of  control  after 
the  completion  of  such  measurement  by  the  state  engineer, 
and  the  return  of  said  evidence  by  said  division  superintend- 
ent, it  shall  be  the  duty  of  the  board  of  control  to  make,  and 
cause  to  be  entered  of  record  in  its  office,  an  order  determin- 
ing and  establishing  the  several  priorities  of  right  to  the  use 
of  waters  of  said  stream,  and  the  amounts  of  appropriations 
of  the  several  persons  claiming  water  from  such  stream,  and 
the  character  and  kind  of  use  for  which  said  appropriation 
shall  be  found  to  have  been  made.  Each  appropriation  shall 
be  determined  in  its  priority  and  amount  by  the  time  by 
which  it  shall  have  been  made,  and  the  amount  of  water 
which  shall  have  been  applied  for  beneficial  purposes.  Pro- 
(198) 


Ch.  9]  ADJUDICATION  OF  PRIORITIES.  g   1Q6 

vided,  that  such  appropriates  shall  at  no  time  be  entitled  to 
the  use  of  more  water  than  he  can  make  a  beneficial  applica- 
tion of  on  the  lands  for  the  benefit  of  which  the  appropriation 
may  have  been  secured,  and  the  amount  of  any  appropriation 
made  by  reason  of  an  enlargement  of  distributing  works  shall 
be  determined  in  like  manner.  Provided,  that  no  allotment 
shall  exceed  one  cubic  foot  per  second  for  each  seventy  acres 
of  land  for  which  said  appropriation  shall  be  made." 

As  soon  as  practicable  after  the  determination  of  the  prior- 
ities of  appropriation  of  the  use  of  waters  of  any  stream,  the 
secretary  of  the  board  of  control  is  required  to  issue  to 
each  person,  association  or  corporation  represented  in  such 
determination,  a  certificate  signed  by  the  state  engineer  as 
president  of  the  board,  and  attested  under  seal  by  the  secre- 
tary, setting  forth  the  name  and  postoffice  address  of  the  ap- 
propriator,  the  priority  number  of  the  appropriation,  the 
amount  of  water  appropriated,  and,  if  the  appropriation  be 
for  irrigation,  a  description  of  the  legal  subdivisions  of  land 
to  which  the  water  is  to  be  applied.  Said  certificate  must  be 
transmitted  by  the  state  engineer,  or  by  a  member  of  the 
board  in  person,  or  by  registered  mail,  to  the  county  clerk 
of  the  county  in  which  the  appropriation  shall  have  been 
made,  and  it  is  the  duty  of  the  county  clerk,  upon  receipt  of 
a  recording  fee  of  seventy-five  cents,  to  record  the  certificate 
in  a  book  specially  prepared  and  kept  for  that  purpose,  and 
to  immediately  transmit  the  certificate  to  the  appropriator. 
Provision  is  made  for  an  appeal,  by  any  party  feeling  himself 
aggrieved,  from  the  decision  of  the  board  of  control  to  the 
district  court,  and  from  that  court  to  the  supreme  court.85 

85  See.  as  to  appeals,  Daley  v.  Anderson  (Wyo.,  1897)  48  Pac.  839. 

(199) 


§   106  LAW  OF  IRRIGATION.  [Ch.  9 

Provision  is  also  made  for  a  rehearing  before  the  board  of 
control. 

The  Wyoming  act  has  been  discussed  at  length  in  a  recent 
case,  in  which  several  questions  were  raised  and  deter- 
mined.86 The  constitutionality  of  the  act  was  assailed  on 
the  ground  that  it  was  in  conflict  with  section  24  of  article  3 
of  the  constitution,  providing  that  "no  bill  *  *  * 
shall  be  passed  containing  more  than  one  subject,  which  shall 
be  clearly  expressed  in  its  title,"  in  so  far  as  it  confers  upon 
the  board  of  control  authority  to  determine  priorities.  The 
act  was  entitled,  "An  act  providing  for  the  supervision  and 
use  of  the  waters  of  the  state,"  and  included  a  general  scheme 
of  government  by  the  board  of  control,  besides  the  system  of 
adjudication  now  being  considered.  It  was  argued  that  the 
provisions  for  adjudication  of  water  rights  are  not  included 
in  the  word  "supervision,"  employed  in  the  title,  and  that 
in  this  respect  the  act  is  broader  than  the  title,  and  contains 
more  than  one  subject.  The  act  was  held  valid,  as  against 
this  objection.  Another  ground  urged  against  the  validity 
of  the  act  was  that,  in  authorizing  the  board  of  control  to  ad- 
judicate priorities  as  provided,  it  conferred  judicial  power 
upon  the  board,  in  violation  of  the  provision  of  the  constitution 
(article  5,  §  1)  vesting  the  judicial  power  in  certain  speci- 
fied courts.  The  court  held  that  the  act  was  not  unconsti- 
tutional on  this  ground,  since  the  duties  of  the  board  were 
primarily  administrative,  rather  than  judicial,  in  character. 

It  was  further  held  that  the  act  is  retroactive,  no  distinc- 
tion being  made  between  claimants  whose  rights  accrued 
prior  to,  and  those  acquiring  rights  after,  the  adoption  of  the 
constitution  and  the  statute,  and  the  same  duty  to  submit 

ss  Farm  Inv.  Co.  v.  Carpenter  (Wyo.,  1900)  61  Pac.  258. 
(200) 


Qh.  9]  ADJUDICATION  OF  PRIORITIES.  g   107 

proofs  being  imposed  011  all  parties  claiming  a  right  to  the 
use  of  water  by  priority  of  appropriation,  without  regard  to 
whether  such  right  was  acquired  before  or  after  the  statute 
was  passed.  On  the  question  of  the  effect  of  the  failure  of 
a  claimant  to  submit  his  proofs,  it  was  held  that,  as  to  such 
claimant,  failing  to  participate  in  the  adjudication  proceed- 
ings, the  decree  of  the  board  of  control  is  not  res  judicata  of 
his  undetermined  rights,  since  the  awarding  of  priorities  to 
some  claimants  does  not  ipso  facto  amount  to  a  denial  of  nor 
depend  upon  the  negation  of  the  rights  of  others,  and  hence  he 
is  at  liberty,  notwithstanding  his  failure  to  submit  his  proofs, 
to  assert  and  maintain  his  rights  in  the  courts, the  jurisdiction 
of  which  remains  as  ample  and  complete  after  as  before  an 
adjudication  by  the  board.  It  was  held,  finally,  that  the 
service  of  notice  of  proceedings  by  registered  mail,  prescribed 
by  the  statute,  is  a  sufficient  service  to  constitute  due  process 
of  law. 

§    107.    Statutory  Adjudication— Washington,  Nebraska,  Montana, 
Utah,  and  Oregon. 

The  statutory  provisions  of  Colorado  and  Wyoming,  con- 
sidered in  the  preceding  sections,  constitute  the  most  complete 
systems  for  the  adjudication  of  water  rights  to  be  found  in 
the  arid  region.  In  several  other  states,  however,  the  matter 
has  received  attention  from  the  legislatures. 

In  Washington,  the  Colorado  system  has  been  adopted  in 
part,  though  the  statute  makes  no  provision  for  proceedings 
before  a  referee,  or  for  review  and  rearguments,  or  for  an 
appeal.87 

87  Codes  &  Statutes  1897,  §§  4158-4164.  These  sections  are  prac- 
tically verbatim  copies  of  Mills'  Ann.  St.  Colo.  §§  2400,  2403-2408, 
respectively. 

(201) 


§   107  LAW  OF  IRRIGATION.  [Oh.  9 

In  Nebraska,  the  Wyoming  system  has  been  adopted,  the 
adjudication  of  priorities  being  made  the  duty  of  the  state 
board  of  irrigation.88 

The  statutes  of  Montana89  and  Utah90  contain  a  single  pro- 
vision on  the  subject  of  the  adjudication  of  water  rights, 
which  is  as  follows :  "In  any  action  hereafter  commenced  for 
the  protection  of  rights  acquired  to  water  under  the  laws  of 
this  state,  the  plaintiff  may  make  any  or  all  persons  who  have 
diverted  water  from  the  same  stream  or  source  parties  to  such 
action,  and  the  court  may,  in  one  judgment,  settle  the  rel- 
ative priorities  and  rights  of  all  the  parties  to  such  action. 
When  damages  are  claimed  for  the  wrongful  diversion  of 
water  in  any  such  action,  the  same  may  be  assessed  and  ap- 
portioned by  the  jury  in  their  verdicts  [or  by  a  court,  if  the 
case  be  tried  without  a  jury],91  and  judgment  thereon  may 
be  entered  for  or  against  one  or  more  of  several  plaintiffs, 
or  for  or  against  one  or  more  of  several  defendants,  and 
may  determine  the  ultimate  rights  of  the  parties  between 
themselves.  In  any  action  concerning  joint  water  rights,  or 
joint  rights  in  water  ditches,  unless  partition  of  the  same  is 
asked  by  parties  to  the  action,  the  court  shall  hear  and  de- 
termine such  controversy  as  if  the  same  were  several  as  well 
as  joint." 

This  provision  contemplates  an  equitable  action,  in  which 
the  court  may  settle  in  one  decree  the  priorities  and  rights  of 
all  the  parties  to  the  water  or  the  use  thereof,  and  when  dam- 
ages are  claimed  in  such  action  for  the  wrongful  diversion 
of  water,  the  same  may  be  assessed  and  apportioned.  The 

ss  Comp.  St.  1899,  §§  5459,  5460,  5462-5470. 

89  Civ.  Code  1895,  §  1891. 

oo  Rev.  St.  1898,  §  1274. 

»i  Words  inclosed  in  []  found  in  Utah  statute  only. 

(202) 


Ch.  9]  ADJUDICATION  OP  PRIORITIES.  g   1Q7 

statute  does  not  apply  to  an  action  at  law  for  damages  to  crops 
caused  by  the  wrongful  joint  diversion  of  water  by  several 
defendants,  where  there  is  nothing  in  the  complaint  or  evi- 
dence to  authorize  the  granting  of  equitable  relief.92 

A  statute  somewhat  similar  to  that  just  quoted  is  found  in 
Oregon.93 

0>  Miles  v.  Du  Bey,  15  Mont.  340,  39  Pac.  313. 

»3  Hills'  Ann.  Laws  1892,  p.  1940,  §  24.     See  statute  in  Appendix. 

(203) 


108  LAW  OF  IRRIGATION.  [(Jh.  10 


CHAPTER  X. 

ACTIONS  FOR  INTERFERENCE  WITH  WATER  RIGHTS. 

§  108.  Generally. 

109.  Action  for  Diversion  of  Water — Generally. 

110.  Same — Who  may  Maintain  Action. 

111.  Same — Joinder  of  Actions  and  Parties. 

112.  Same — Independent  Diversions   by   Several  Defendants. 

113.  Same — Plaintiff's  Rights  must  be  Invaded — Proof  of  Dam- 

ages. 

114.  Same — Jurisdiction  of  a  Court  of  Equity. 

115.  Same — Pleading. 

116.  Action  to  Quiet  Title. 

117.  Pollution  of  Water. 

g    108.    Generally. 

A  person  who  has  a  right  to  the  use  of  water  for  irriga- 
tion is  of  course  entitled  to  the  same  protection  for  his  water 
right  as  for  any  other  of  his  legal  rights,  and  when  such  right 
is  interfered  with,  he  may  maintain  an  action  for  damages  or 
for  an  injunction  restraining  the  commission  or  continuance 
of  the  injury. 

The  water  right  may  be  interfered  with  either  by  an 
injury  to  the  ditch,  whereby  its  capacity  to  convey  water  is 
impaired,  or  by  a  pollution  of  the  water,  so  that  it  is  ren- 
dered unfit  for  irrigation  purposes,  or,  as  is  usually  the  case, 
by  an  unlawful  diversion  of  the  water,  so  that  parties  having 
a  prior  right  thereto  are  deprived  of  some  or  all  of  the  water 
to  which  they  are  entitled.  Causes  of  action  for  the  inter- 
ference with  water  rights  do  not  differ  in  kind  from  other 
civil  actions  for  tort,  and  are  subject  to  the  rules  of  pleading 
and  practice  common  to  such  actions  generally. 
(204) 


Ch.  10]  ACTIONS  FOR  INTERFERENCE.  g    199 

§    109.    Action  for  Diversion  of  Water  -  Generally. 

A  person  entitled  to  the  flow  or  use  of  a  certain  quantity 
of  water  for  irrigation  purposes  may  maintain  an  action  for 
damages  or  for  an  injunction  against  any  one  unlawfully 
diverting  the  water  to  his  prejudice.1  This  is,  of  course, 
true,  whether  he  claims  the  water  as  a  riparian  proprietor 
or  as  a  prior  appropriate!1,  but  there  are  some  important 
distinctions,  bearing  on  the  right  to  maintain  the  action,  to 
be  made  between  the  two  cases,  growing  out  of  the  funda- 
mental difference  between  the  right  to  water  as  an  incident 
to  riparian  ownership,  and  such  right  based  upon  priority 
of  appropriation.  To  sustain  an  action  for  the  diversion  of 
water,  it  must,  of  course,  appear  in  either  case  that  the 
diversion  complained  of  has  been  in  prejudice  of  the  plain- 
tiff's superior  right.  Not  every  diversion  is  unlawful,  but  a 
diversion  that  might  be  unlawful  where  the  plaintiff  claims 
the  water  as  a  riparian  owner  need  not  necessarily  be  so 
where  the  plaintiff's  right  is  based  upon  prior  appropriation. 
This  is  plain  when  we  recall  that  the  riparian  proprietor  is 
entitled  to  the  entire  flow  of  the  stream,  except  so  far  as  it 
may  be  diminished  by  the  lawful  use  of  upper  proprietors, 
whether  he  uses  or  needs  it  or  not;  but  a  prior  appropriator 
has  no  right  whatever  to  the  flow  of  the  water  as  such,  and 
may  claim  only  so  much  of  the  water  as  he  has  appropriated 
and  actually  uses  or  needs  for  the  proper  irrigation  of  his 
land. 

From  this  it  follows  that  a  riparian  proprietor  may  main- 
tain an  action  for  any  diversion  of  the  water  of  the  stream 
which  diminishes  the  flow  of  water  to  which  he  is  entitled, 

i  Ellis  v.  Tone,  58  Cal.  289.  See  cases  cited  throughout  this 
chapter. 

(205) 


§   109  LAW  OF  IRRIGATION.  [Ch.  10 

and  may  recover  nominal  damages,  although  he  has  suffered 
no  actual  injury ;  and  he  will  be  entitled  to  an  injunction 
restraining  the  continuance  of  such  diversion,  although  no 
actual  injury  be,  threatened.  The  mere  diversion  of  the 
water  is  an  infringement  of  his  rights.  But  a  prior  ap- 
propriator  cannot  recover  damages  for  a  past  diversion  un- 
less he  has  been  actually  injured  thereby;  nor  may  he  enjoin 
the  continuance  of  such  diversion  unless  an  actual  injury 
be  threatened.  The  mere  diversion,  without  actual  or 
threatened  injury,  is  no  infringement  of  his  rights.2 

A  prior  appropriator,  unless  he  can  show  that  he  is  en- 
titled to  all  the  water  of  a  natural  stream,  cannot,  in  the  na- 
ture of  things,  identify  certain  specific  water  as  belonging  to 
himself,  while  it  is  running  in  its  natural  channel;  and  so 
long  as  he  is  able  to  secure  the  full  amount  of  water  to  which 
he  is  entitled,  he  cannot  complain  that  other  persons  are 
diverting  the  water.3  But  where  an  irrigator  is  entitled  to 
all  the  water  of  a  stream,  any  diversion  of  the  water  thereof 
is,  of  course,  wrongful,  and  may  be  enjoined;  and  in  order 
to  support  a  judgment  in  the  plaintiff's  favor  in  such  case, 
a  specific  finding  that  the  diversion  was  wrongful  and  with- 
out right  is  not  necessary.4 

In  estimating  the  damages  in  an  action  for  the  wrongful 
diversion  of  water,  the  real  injury  wrought,  rather  than 
the  period  of  time  during  which  the  plaintiff  was  deprived 
of  the  water,  is  to  be  taken  as  the  measure  of  damages.5 

The  fact  that  the  water  was  not  diverted  directly  from  the 

2  See  post,  §  113. 

3  Saint  v.  Guerrerio,  17  Colo.  448,  30  Pac.  335. 
*  Williams  v.  Harter,  121  Cal.  47,  53  Pac.  405. 
s  Carron   v.   Wood,   10   Mont.   500,   26   Pac.  388. 

(206) 


Ch.  10]  ACTIONS  FOR  INTERFERENCE.  §    109 

stream  by  means  of  ditches  tapping  it  does  not  prevent  the 
maintenance  of  an  action  for  depriving  the  plaintiff  of  water 
to  which  he  is  entitled.  Thus,  an  action  may  be  maintained 
to  abate  ditches  or  wells  dug  so  near  the  stream  from  which 
the  plaintiff  derives  his  supply  of  water  as  to  withdraw  some 
of  the  water  therefrom  by  percolation.6 

It  may  sometimes  be  a  question  as  to  what  is  the  proper 
county  in  which  to  bring  an  action  for  the  diversion  of  water, 
where  the  residence  of  the  parties,  or  their  respective  proper- 
ties, are  in  different  counties.  In  this  connection  it  should 
be  noted  that  the  cause  of  action  for  an  interference  with 
a  water  right  acquired  by  prior  appropriation,  by  the  unlaw- 
ful diversion  of  the  water,  consists  not  only  in  the  wrongful 
diversion  of  the  water,  but  also  in  the  consequent  injury  to 
the  prior  appropriator.  Neither  the  diversion  alone,  nor  the 
injury  alone  is  sufficient  to  constitute  a  cause  of  action 
.against  the  person  diverting  the  water.  The  mere  diversion 
of  water  gives  the  prior  appropriator  no  right  to  complain 
so  long  as  he  receives  all  the  water  to  which  he  is  entitled. 
Likewise  as  to  the  injury,  unless  it  be  shown  that  it  was 
caused  by  the  diversion  in  question.  The  diversion  of  the 
•water  and  the  consequent  injury  constitute  one  cause  of  ac- 
tion. From  this  it  follows  that  the  cause  of  action  may 
arise  in  two  different  counties,  as  where  the  defendant  in 
•one  county  diverts  water  to  which  the  plaintiff  is  entitled 
for  the  irrigation  of  his  land  lying  in  another  county.  In  such 
case,  the  plaintiff  may  elect  in  which  county  he  will  bring 

«  Platt  Val.  Irr.  Co.  v.  Buckers  Irr.,  Mill.  &  Imp.  Co.,  25  Colo.  77, 
53  Pac.  334;  McClellan  v.  Hurdle,  3  Colo.  App.  430,  33  Pac.  280.  See 
:also,  Herriman  Irr.  Co.  v.  Butterfield  Min.  &  Mill.  Co.,  19  Utah,  453, 
.57  Pac.  537. 

(207) 


§  109  LAW  OF  IRRIGATION.  [Ch.  10 


his  action.7  Similarly,  where  the  plaintiff's  irrigating  ditch 
is  located  in  two  counties,  —  the  head  of  the  ditch  being  in 
one  county,  and  the  land  to  be  irrigated  lying  in  the  other 
county,  —  a  cause  of  action  for  diverting  the  water  from  the 
stream  above  the  head  of  the  plaintiff's  ditch  arises  in  both 
counties,  and  the  action  for  such  diversion  may  therefore 
be  brought  in  either  county.8 

In  an  action  for  the  diversion  of  water,  it  is  of  course  a 
good  defense  that  the  defendant  has  a  right  to  the  water 
either  as  legal  owner  or  otherwise.9  But  an  allegation  in 
the  answer  that  the  defendant  is  the  owner  of  a  tract  of  land 
through  which  the  stream  flows,  and  that  most  of  such  tract 
is  susceptible  of  and  would  be  benefited  by  irrigation,  with- 
out any  allegation  that  he  is  entitled,  as  a  riparian  owner, 
to  any  definite  quantity  of  water  for  the  irrigation  of  his 
riparian  land,  or  as  to  what  proportion  of  the  waters  of  the 
stream  he  could  reasonably  exhaust  for  that  purpose,  or 
whether  his  land  is  above  or  below  the  point  of  the  plaintiff's 
diversion,  is  insufficient  to  raise  any  issue  as  to  the  extent  of 
the  defendant's  right,  as  a  mere  riparian  proprietor,  to  divert 
and  exhaust  any  portion  of  the  waters  of  the  stream  ;  and  a 
finding  in  accordance  with  such  allegation  does  not  conflict 
with  a  general  finding  in  favor  of  the  plaintiff,  as  the  owner 
of  the  water  decreed  to  him.10  So,  also,  a  cross-complaint 
by  the  defendant  claiming  riparian  rights  in  the  water  of  the 
stream  in  question,  which  does  not  show,  by  statement  of 
facts,  that  the  defendant  owns  or  holds  by  right  any  lands 

7  Deseret  Irr.  Co.  v.  Mclntyre,  16  Utah,  398,  52  Pac.  628. 
s  Lower  Kings  River  Water  Ditch  Co.  v.  Kings  River  &  F.  Canal 
Co.,  60  Cal.  408. 

o  Posachane  Water  Co.  v.  Standart,  97  Cal.  476,  32  Pac.  532. 
10  Riverside  Water  Co.  v.  Gage,  89  Cal.  410,  26  Pac.  889. 

(208) 


Ch.  10]  ACTIONS  FOR  INTERFERENCE.  §  109 

which  are  riparian  to  such  stream,  does  not  state  a  cause  of 
action  for  a  cross-complaint.11 

Where,  in  an  action  for  the  diversion  of  water,  the  plain- 
tiff makes  out  a  prima  facie  case  as  to  his  right  to  the  water, 
the  burden  is  cast  upon  the  defendant  to  show  that  he  was 
the  owner  of  the  water  diverted  by  him,  and  had  a  right  to 
divert  it,  and  did  not  divert  more  than  belonged  to  him. 
Thus,  where  the  defendant  claims  that  the  water  diverted 
had  been  previously  turned  into  the  stream  by  him,  he  has 
the  burden  of  showing  that  he  has  not  diverted  any  more 
water  from  the  stream  than  he  has  turned  into  it,  and  that 
the  diversion  has  not  diminished  the  quantity  of  water  pre- 
viously appropriated  by  the  plaintiff.12 

We  have  seen  that  the  right  acquired  by  prior  appropria- 
tion is  wholly  independent  of  the  needs  of  later  appropriators, 
and  hence,  where  a  party  has  acquired  a  priority  of  right  to 
water  by  a  valid  appropriation  thereof,  another  party  cannot 

11  Silver  Creek  &  Panoche  Land  &  Water  Co.  v.  Hayes,  113  Cal. 
142,  45  Pac.  191.     In  this  case,  the  defendant  in  his  cross  complaint 
averred  that  he  owned  three  lots,  and  had  possession  and  control 
of  three  other  lots,  and  that  the  stream  flowed  "through  the  natural 
channel  thereof  over  and  across  the  lands  of  defendant,  as  afore- 
said," but  did  not  aver  that  it  flowed  over  the  lots  owned  by  him, 
or  that  he  had  possession  and  control  of  the  other  lots  by  right. 
The  presumption  being  that  he  had  made  his  allegation  as  strong 
as  he  could  make  it,  it  was  held  that  it  must  be  presumed  that  he 
had  taken  possession  of  these  three  other  lots  without  right,  and 
that  the  water  flowed  only  over  these  lots  in  which  he  had  no 
right;   and,  further,  that  although  a  trespasser  on  public  lands  is 
for  some  purposes  deemed   the  owner,   yet,  when  one  asserts  ri- 
parian rights  as  against  an  upper  appropriator  of  water,  he  must 
show  some  right,  inchoate  or  otherwise,  to  the  land. 

12  Herriman  Irr.  Co.  v.  Butterfield  Min.  &  Mill  Co.,  19  Utah,  453, 
57  Pac.  537.     See  ante,  §  43. 

(209) 


§  109  LAW  OF  IRRIGATION.  [Ch.  10 

justify  an  interference  with  such  right  by  merely  showing 
that  he  is  wholly  dependent  upon  the  same  supply  of  water.13 

An  action  for  the  diversion  of  water  cannot  be  maintained 
by  one  who  consented  to  such  diversion;  such  consent  being 
a  complete  defense  to  the  action.14  And  since  no  riparian 
rights  can  be  claimed  in  an  artificial  stream,  it  is  a  good  de- 
fense to  an  action  for  the  diversion  of  water  by  one  claiming 
a  right  thereto  as  a  riparian  proprietor  to  show  that  the 
stream  in  question  is  an  artificial,  and  not  a  natural,  water- 
course.15 So,  also,  an  action  for  an  injunction  restraining 
the  obstruction  of  the  flow  of  a  stream  cannot  be  maintained 
where  it  appears  that  there  was  no  obstruction.16 

It  will  ordinarily  be  a  good  defense,  of  course,  that  the  di- 
version complained  of  was  not  made  by  the  defendant.  Thus 
it  has  been  held  that  the  owner  of  riparian  land,  who  has 
leased  it  to  a  tenant,  the  latter  having  exclusive  control  of 
the  premises,  water  flumes,  etc.,  is  not  liable  for  the  unlawful 
diversion  by  the  tenant  of  more  water  than  he  was  entitled 
to,  the  lessor  having  had  nothing  to  do  with  such  diversion.17 

An  action  for  the  wrongful  diversion  of  water  may  be 
barred  by  the  statute  of  limitations,  and  adverse  possession 
by  the  defendant  for  the  period  of  limitations  is  therefore 
a  good  defense  to  the  action.18 

13  Roberts  v.  Arthur,  15  Colo.  456,  24  Pac.  922.  But  see  this  case 
to  the  effect  that  an  allegation  of  such  dependence  may  sometimes 
be  proper  in  an  equitable  proceeding.  See,  also,  Barrows  v.  Fox, 
(Cal.,  1892)  30  Pac.  768. 

i*  Churchill  v.  Baumann,  95  Cal.  541,  30  Pac.  770,  104  Cal.  369,  36 
Pac.  93,  38  Pac.  43.  See  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674. 

is  See  Sampson  v.  Hoddinott,  1  C.  B.  (N. -S.)  590,  87  E.  C.  L.  590; 
Green  v.  Carotta,  72  Cal.  267,  13  Pac.  685. 

is  Sparlin  v.  Gotcher,  23  Ore.  186,  31  Pac.  399. 

IT  Gould  v.  Stafford,  101  Cal.  32,  35  Pac.  429. 

is  Evans  v.  Ross  (Cal.  1885)  8  Pac.  88.     See  ante,  §§  88-93. 
(210) 


Ch.  10]  ACTIONS  FOR  INTERFERENCE.  §  110 

§    110.    Same— Who  may  Maintain  Action. 

It  is  obvious  that  an  action  for  the  diversion  of  water  can 
be  maintained  only  by  one  who  owns  the  water  right,  or  has 
such  an  interest  therein  as  can  be  invaded.  A  judgment 
for  damages  in  such  case  can  be  based  only  upon  the  owner- 
ship or  right  of  property  in  the  water,  and  the  wrongful  in- 
vasion of  that  right.  Therefore,  if,  in  an  action  for  the  di- 
version of  water,  both  parties  claim  the  ownership  of  the 
water  right,  the  question  of  ownership  must  first  be  deter- 
mined before  any  judgment  for  damages  can  stand.19  It  is 
not  necessary  that  the  plaintiff  should  be  the  owner  of  the 
ditch  by  which  the  water  is  supplied,  but  it  is  sufficient  if  he 
has  a  right  to  the  use  of  the  water.  Thus,  the  owner  of 
lands  irrigated  by  means  of  a  ditch  owned  by  another  may 
enjoin  the  wrongful  diversion  of  water  above  him  to  his  in- 
jury.20 Again,  the  plaintiff  need  not  be  the  owner  of  the 
land  if  he  has  the  right  of  occupation  and  to  the  use  of  the 
water  thereon.  Thus,  a  tenant  for  years  many  enjoin  the 
unlawful  diversion  of  water  from  a  stream  flowing  by  the 
leased  premises,  though,  in  effect,  the  injunction,  though  per- 
petual, will  cease  to  exist  with  the  termination  of  the  lease.21 
In  such  case,  also,  the  owner  of  the  leased  premises  may 
maintain  an  action  for  the  unlawful  diversion,  such  diver- 
sion, at  least  where  the  doctrine  of  riparian  rights  obtains, 
being  an  injury  done  to  the  inheritance.22  A  person  in 

19  Cash  v.  Thornton,  3  Colo.  App.  475,  34  Pac.  268. 

20  Clifford  v.  Larrien   (Ariz.  1886)   11  Pac.  397. 

2iHeilbron  v.  Fowler  Switch  Canal  Co.,  75  Cal.  426,  17  Pac.  535; 
Heilbron  v.  Kings  River  &  F.  Canal  Co.,  76  Cal.  11,  17  Pac.  933; 
Crook  v.  Hewitt,  4  Wash.  749,  31  Pac.  28. 

'-'2  Heilbron  v.  Last  Chance  Water  Ditch  Co.,  75  Cal.  117,  17 
Pac.  65. 

(211) 


§   111  LAW  OF  IRRIGATION.  [Ch.  10 

possession  of  land  as  a  pre-emptor,  who  holds  a  receiver's 
receipt  for  payment  therefor,  which  is  made  by  statute  prima 
facie  evidence  of  rightful  possession,  may,  as  a  riparian 
proprietor,  restrain  the  unlawful  diversion  of  water  by  an 
upper  proprietor.23  An  action  for  the  diversion  of  water 
may  be  maintained  by  a  city  which  has  acquired  the  water 
right  from  the  original  appropriators.24 

The  assignee  of  a  water  right  may  maintain  an  action 
thereon,  although  the  assignment  was  made  for  the  express 
purpose  of  enabling  him  to  bring  the  action.  Thus  it  has 
been  held  that  one  to  whom  certain  lands  were  granted  for 
the  purpore  of  bringing  an  action  for  water  rights  connected 
therewith,  with  an  oral  agreement  that  upon  the  termination 
of  the  litigation  the  lands  should  be  reconveyed,  might  main- 
tain the  action  in  his  own  name,  such  action  being  founded 
on  the  legal  title.25 

§    111.    Same— Joinder  of  Actions  and  Parties. 

It  is  the  common  practice  to  join  an  action  to  recover 
damages  for  the  diversion  of  water  and  a  cause  of  action 
to  obtain  an  injunction  to  restrain  the  continuance  of  the 
diversion.26  But  where  there  are  several  plaintiffs,  causes 
of  action  which  are  several  cannot  be  joined  with  causes  of 
action  which  are  common.  Thus,  where  several  persons  own 

as  Conkling  v.  Pacific  Imp.  Co.,  87  Cal.  296,  25  Pac.  399. 

24  Springville  v.  Fullmer,  7  Utah,  450,  27  Pac.  577. 

25  Smith  v.  Logan,  18  Nev.  149,  1  Pac.  678. 

26  See  cases  cited  throughout  this  chapter.    An  action  to  recover 
damages  for  the  diversion  and  pollution  of  a  stream  of  water,  and 
an  action  to  obtain  an  injunction  restraining  the  further  diversion 
and  pollution  thereof,  may  be  properly  joined.     Watterson  v.  Sal- 
dunbehere,  101  Cal.  107,  35  Pac.  432.     See,  also,  Jacob  v.  Lorenz,  98 
Cal.  332,  33  Pac.  119. 

(212) 


Ch.  10]  ACTIONS  FOR  INTERFERENCE.  §  111 

separate  tracts  of  land  in  severalty,  they  cannot  join  a  cause 
of  action  for  damages  caused  to  their  respective  tracts  by  the 
diversion  of  writer  by  the  defendant  with  a  cause  of  action 
for  an  injunction  restraining  the  future  diversion  of  the 
water,  [n  such  case,  the  cause  of  action  to  obtain  an  injunc- 
tion is  common  to  all  the  plaintiffs,  but  the  cause  of  action 
for  damages  is  several  as  to  each  plaintiff,  and  hence  the  two 
causes  of  action  are  improperly  joined.27  There  is,  of 
course,  also  a  misjoinder  of  parties  plaintiff  in  such  case,  in 
that  they  seek  a  joint  recovery  of  damages  in  which  they  have 
no  joint  interest.  But  the  several  plaintiffs  may  join  in  the 
common  action  for  an  injunction.28  Tenants  in  common 
of  water  rights  may  join  in  an  action  to  restrain  the  interfer- 
ence with  their  common  right.29  It  is  not  necessary  that 
they  should  join,  however,  for  each  cotenant  may  bring  an 
action  enjoining  the  diversion  of  any  of  the  water  by  a 
stranger.30 

A  joint  action  for  damages  cannot  be  maintained  against 
two  or  more  defendants,  where  the  acts  complained  of  were 
not  clone  by  them  acting  jointly,  but  each  diverted  the  water 
independently  of  all  the  others.31  But  such  persons  may  be 

27  Barham   v.   Hostetter,   67   Cal.    274,    7   Pac.   689;    Foreman  v. 
Boyle,  88  Cal.  290,  26  Pac.  94. 

28  Churchill  v.  Lauer,  84  Cal.  233,  24  Pac.  107;  Foreman  v.  Boyle, 

88  Cal.  290,  26  Pac.  94;  Ronnow  v.  Delmue,  23  Nev.  29,  41  Pac.  1074. 

29  Smith  v.   Stearns  Rancho  Co.    (Cal.,   1900)    61  Pac.   662. 

so  Union  Mill  &  Min.  Co.  v.  Dangberg,  81  Fed.  73;  Rodgers  v.  Pitt, 

89  Fed.    420;    Lytle    Creek   Water    Co.    v.    Perdew,    65    Cal.    447,    4 
Pac.  426. 

si  Evans  v.  Ross  (Cal.  1885)  8  Pac.  88;  Miles  v.  Du  Bey,  15  Mont. 
340,  39  Pac.  313.  See,  contra,  Hillman  v.  Newington,  57  Cal.  56,  in 
which,  however,  the  main  purpose  of  the  action  was  to  obtain  an 
injunction,  only  nominal  damages  being  awarded.  See,  also,  Saint 
v.  Guerrerio,  17  Colo.  448,  30  Pac.  335. 

(213) 


§  112  LAW   OF   IRRIGATION.  [Ch.  10 

joined  as  defendants  in  a  suit  in  equity  for  an  injunction.32 
And  where  the  defendants  jointly  committed  the  acts  com- 
plained of,  or  the  diversion  was  made  by  one  for  the  benefit 
of  all,  they  are,  of  course,  jointly  liable,  and  should  be  joined 
as  defendants.33  The  principles  here  stated  have  been  ap- 
plied to  actions  other  than  for  the  diversion  of  water,  it  being 
held  that  several  tort  feasors,  acting  severally,  and  not  joint- 
ly, may  be  jointly  restrained  from  the  continuance  of  the 
injury,  but  are  not  jointly  liable  in  damages.34 

§    112.    Same— Independent  Diversions  by  Several  Defendants. 

Several  persons  may  divert  the  water  of  a  stream,  so  that 
the  aggregate  eifect  of  their  several  diversions  is  to  deprive 
a  prior  appropriator  of  some  or  all  of  the  water  to  which  he 
is  entitled,  although  no  single  diversion  alone  would  have 
this  effect.  In  such  case,  the  prior  appropriator  can  have 
no  separate  action  against  any  one  of  such  persons,  for  the 
latter,  acting  alone,  has  done  him  no  wrong.  But  he  is  not 
without  remedy.  He  may,  and,  in  order  to  obtain  redress,  he 
must,  bring  a  joint  action  against  all  of  such  persons  whose 
appropriations  are  junior  to  his  own  to  recover  damages 
for  the  diversion,  and  to  restrain  a  continuance  thereof,  leav- 
ing the  parties  defendant  in  such  case  to  settle  their  respec- 

32  Union  Mill  &  Min.  Co.  v.  Dangberg,  81  Fed.  75. 

a«  Hulsman  v.  Todd,  96  Cal.  228,  31  Pac.  39.  See,  also,  Bowman  v. 
Bowman  (Ore.,  1899)  57  Pac.  546. 

Where  it  appears  from  the  allegations  of  the  answer  that  the 
defendants  acted  jointly  in  diverting  the  water,  a  special  finding 
that  they  are  jointly  liable  and  jointly  committed  the  acts  com- 
plained of  is  not  necessary  to  sustain  a  judgment  against  them 
jointly  for  damages.  Williams  v.  Harter,  121  Cal.  47,  53  Pac.  705. 

34  Miller  v.  Highland  Ditch  Co.,  87  Cal.  430,  25  Pac.  550;  Blaisdell 
v.  Stephens,  14  Nev.  17,  33  Am.  Rep.  523. 

(214) 


Ch.  10]  ACTIONS  FOR  INTERFERENCE.  §   112 

tive  priorities  among  themselves.35  And  it  has  been  held 
that  the  payment  of  the  damages  and  costs  recovered  should 
be  apportioned  equally  among  the  defendants.36  But  all 
the  parties  whose  joint  acts  operate  to  deprive  the  prior  ap- 
propriator  of  the  water  to  which  he  is  entitled  should  be 

35Hillman  v.  Newington,  57  Cal.  56;  Saint  v.  Guerrerio,  17  Colo. 
448,  30  Pac.  335.  In  this  case  Elliott,  J.,  said:  "To  illustrate:  Let 
us  suppose  that  the  natural  flow  of  water  in  the  *  *  *  creek  is 
only  200  inches,  and  that  plaintiff,  as  the  prior  appropriator,  is  en- 
titled to  100  inches  thereof.  Mansfield,  owning  lands  on  said  stream 
above  plaintiff,  diverts  100  inches  of  the  water.  Saint,  next  below 
Mansfield,  but  still  above  plaintiff,  diverts  another  100  inches.  Thus 
it  results  that  plaintiff  is  wholly  deprived  of  the  use  of  the  water, 
though  he  is  the  actual  prior  appropriator  thereof.  To  obtain  re- 
dress, plaintiff  commences  his  action  by  injunction  against  Mans- 
field. The  action  is  resisted;  Mansfield  shows  that  he  leaves  water 
enough  in  the  natural  stream  for  plaintiff,  and  thus  plaintiff  is  de- 
feated, unless  he  assumes  the  burden  of  proving  that  Mansfield's 
appropriation  is  junior  to  Saint's, — a  matter  in  which  plaintiff  has 
no  interest.  The  same  result  follows  if  Saint  be  sued  separately; 
and  thus  the  party  actually  having  the  better  right  is  prevented 
from  maintaining  it.  To  prevent  a  failure  of  justice  in  cases  of 
this  kind,  the  prior  appropriator  cannot  properly  be  required  to  as- 
sume any  such  risks  or  burdens.  But  he  may  bring  and  maintain 
an  action  jointly  against  all  parties,  junior  in  right  to  himself, 
whenever  the  result  of  their  acts,  either  joint  or  several,  deprives 
him  of  his  better  right  to  the  use  of  the  water,  or  substantially 
interferes  therewith.  He  may  thus  secure  protection  to  his  own 
priority,  and  leave  the  junior  appropriators  to  settle  their  relative 
priorities  among  themselves." 

se  Hillman  v.  Newington,  57  Cal.  56.  This  case,  in  so  far  as  it 
holds  that  a  joint  action  for  damages  may  be  maintained  against 
several  persons  severally  diverting  water,  is  undoubtedly  wrong 
(see  ante,  §  111);  but  the  damages  awarded  in  the  case  were  merely 
nominal,  the  main  purpose  of  the  action  being  to  obtain  an  injunc- 
tion. The  real  decision,  that  a  joint  action  might  be  maintained 
to  obtain  an  injunction,  and  that  the  costs  should  be  divided,  is  in 
accordance  with  the  weight  of  authority. 

(215) 


§  113  LAW   OF   IRRIGATION.  [Ch.  10 

joined  as  defendants ;  and  where,  in  an  action  brought  to  re- 
strain the  defendants  from  obstructing  the  flow  of  a  stream 
to  the  plaintiff's  ditch,  it  appears  that  during  the  period  com- 
plained of  other  persons,  not  parties  to  the  action,  have  di- 
verted water  from  the  same  stream  to  such  an  extent  that  it 
cannot  be  sufficiently  shown  that,  but  for  the  acts  of  such 
persons,  no  injury  would  have  resulted  to  the  plaintiff,  an 
injunction  will  not  be  granted.37 

But  where  the  diversion  of  water  by  one  person  is  unlaw- 
ful of  itself,  irrespectively  of  any  diversion  by  other  parties, 
as  it  would  be  where  one  person  diverts  water  to  such  an  ex- 
tent as  to  deprive  a  prior  appropriator  of  some  of  the  water 
to  which  he  is  entitled,  and  other  diversions  would  simply  in- 
crease the  extent  to  which  the  prior  appropriator  is  injured, 
or  where  a  riparian  owner  diverts  more  water  than  he  may 
claim  as  against  the  plaintiff,  it  is  no  defense,  in  an  action 
for  such  unlawful  diversion,  that  other  persons  were  also  un- 
lawfully diverting  the  water,  and  it  is  therefore  not  error  to 
exclude  evidence  of  such  diversion  by  other  persons.38  Such 
evidence  is  admissible  only  on  the  issue  as  to  the  amount  of 
damages,  and  if  the  plaintiff  waives  all  claim  to  damages  ex- 
cept nominal  damages,  it  is  not  admissible  at  all.39 

§    113.    Same— Plaintiff's    Eights    must    be    Invaded— Proof  of 
Damages. 

In  order  to  entitle  the  claimant  of  a  water  right  to  an  in- 

37  West  Point  Irr.  Co.  v.  Moroni  &  Mt.  P.  Irr.  Ditch  Co.   (Utah, 
1900)  61  Pac.  16. 

38  Gould  v.  Stafford,  77  Cal.  66,  18  Pac.  879;  Lakeside  Ditch  Co.  v. 
Crane,  80  Cal.  181,  22  Pac.  76;  Heilbron  v.  Kings  River  &  F.  Canal 
Co.,  76  Cal.  11,  17  Pac.  933. 

39  Gould  v.  Stafford,  77  Cal.  66,  18  Pac.  879. 
(216) 


Ch.  10]  ACTIONS  FOR  INTERFERENCE.  §   113 

junction  or  damages  in  an  action  for  an  alleged  interference 
with  his  right,  it  must,  of  course,  appear  that  his  right  has 
been  invaded.  And  an  injunction  will  not  be  granted  in  such 
an  action  to  restrain  the  defendant  from  diverting  the  water 
of  the  stream  in  question,  where  it  appears  that  the  water 
diverted  would  not  have  reached  the  plaintiff's  land  even  if  the 
defendant  had  permitted  it  to  continue  to  flow  in  its  natural 
channel.40  Similarly,  where  an  injunction,  issued  at  the 
suit  of  the  defendant,  restraining  the  plaintiff  from  using  the 
water  of  a  certain  ditch,  was  dissolved,  it  was  held,  in  an 
action  on  the  injunction  bond  to  recover  damages  for  loss  of 
the  plaintiff's  crops  by  reason  of  the  issuing  of  the  injunc- 
tion, that  a  judgment  in  favor  of  the  plaintiff  for  nominal 
damages  would  not  be  disturbed  on  writ  of  error  by  the  plain- 
tiff, where  the  evidence  showed  that  there  was  a  great  scarcity 
of  water,  so  that  it  could  not  have  reached  the  plaintiff's 
land.41 

But  although  there  must  be  an  actual  or  threatened  in- 
vasion of  the  plaintiff's  rights  to  entitle  him  to  maintain  an 
action  for  the  diversion  of  water,  it  is  not  necessary  in  all 
cases  that  there  should  be  an  actual  or  threatened  injury  and 
consequent  damages.  As  stated  in  a  previous  section,  a  ri- 
parian proprietor,  as  such,  may  maintain  an  action  for  any 
diversion  of  the  water  of  the  stream  which  diminishes  the 

40  Larimer  &  Weld  Reservoir  Co.  v.  Cache  La  Poudre  Irr.  Co.,  8 
Colo.  App.  237,  45  Pac.  525,  affirmed  in  25  Colo.  144,  53  Pac.  318. 
Leonard  v.  Shatzer,  11  Mont.  422,  28  Pac.  457;    Raymond  v.  Wim- 
sette,  12  Mont.  551,  31  Pac.  537;   West  Point  Irr.  Co.  v.  Moroni  & 
Mt.  P.  Irr.  Ditch  Co.  (Utah,  1900)  61  Pac.  16. 

41  Mack  v.  Jackson,  9  Colo.  536,  13  Pac.  542.     It  was  further  held 
in  this   case   that,   if  the   plaintiff   could   have   obtained   sufficient 
water  from  some  other  source,  he  could  not  recover  a  greater  sum 
than  he  would  have  had  to  expend  in  so  doing. 

(217) 


§  113  LAW  OF  IRRIGATION.  [Ch.  10 

flow  of  water  to  which  he  is  entitled,  and  may  recover  nominal 
damages,  or  enjoin  such  diversion,  although  there  be  no  ac- 
tual or  threatened  injury.  But  a  prior  appropriator  may  re- 
cover damages  or  enjoin  the  diversion  only  in  case  of  actual 
or  threatened  injury.42 

On  these  principles,  it  is  held  that  one  riparian  proprietor 
may  maintain  an  action  on  the  case  against  another,  and  re- 
cover nominal  damages  for  an  unlawful  diversion  of  water, 
constituting  an  invasion  of  the  riparian  rights  of  the  plaintiff, 
without  proof  of  actual  present  damages.43  In  such  case  it 
is  sufficient  for  the  plaintiff  to  show  an  obstruction  of  his 
right,  and  such  obstruction  being  shown,  the  law  will  infer 
damage.44  But  where,  even  in  the  case  of  a  riparian  pro- 
prietor, there  can  be  no  invasion  of  the  plaintiff's  right  with- 
out actual  perceptible  damage,  no  action  can  be  maintained 
for  the  diversion  without  proof  of  such  damage.45 

An  action  for  an  injunction  to  restrain  the  wrongful  diver- 
sion of  water  may  be  maintained  by  the  person  having  a 
right  to  the  water  as  a  riparian  owner  or  otherwise,  without 
proof  of  actual  past  damages,46  though  undoubtedly,  where 

42  see  ante,  §  109. 

43Blanchard  v.  Baker,  8  Greenl.  (Me.)  253,  23  Am.  Dec.  504;  Elliot 
v.  Fitchburg  R.  Co.,  10  Gush.  (Mass.)  191,  57  Am.  Dec.  85. 

44  Sampson  v.  Hoddinott,  1  C.  B.  (N.  S.)  590,  87  E.  C.  L.  590.     So, 
also,  in  an  action  for  an  injunction.     Rigney  v.  Tacoma  Light  & 
Water  Co.,  9  Wash.  576,  38  Pac.  147. 

45  Elliot  v.  Fitchburg  R.  Co.,  10  Gush.   (Mass.)   191,  57  Am.  Dec. 
85.     See  Embrey  v.   Owen,   6   Exch.   353;    Heilbron   v.   76  Land   & 
Water  Co.,  80  Gal.  189,  22  Pac.  62;  Modoc  Land  &  Live  Stock  Co.  v. 
Booth,  102  Gal.  151,  36  Pac.  431. 

46  Moore  v.  Clear  Lake  Water  Works,  68  Gal.  146,  8  Pac.   816; 
Conkling  v.  Pacific  Imp.  Co.,  87  Gal.  296,  25  Pac.  399;   Spargur  v. 
Heard,  90  Gal.  221,   27  Pac.  198;  Mott  v.  Ewing,  90  Gal.  231,  27  Pac. 

(218) 


[Ch.    10  ACTIONS  FOR  INTERFERENCE.  §  113 

the  plaintiff  claims  as  a  prior  appropriator,  there  must  be 
proof  of  threatened  injury.  In  general,  where  there  can  be 
no  invasion  of  the  plaintiff's  rights  by  the  defendant's  diver- 
'sion  of  the  water  without  actual  damage,  before  the  plaintiff 
can  enjoin  the  defendant  from  diverting  the  water,  he  must 
show  that  he  will  be  damaged  by  such  diversion.47  In  ac- 
cordance with  these  principles,  it  has  been  held  that  the  right 
of  a  riparian  proprietor  to  an  injunction  restraining  the  di- 
version of  the  water  of  the  stream  by  one  who  is  not  a  ri- 
parian owner  does  not  depend  upon  the  amount  of  injury 
which  he  has  received.  As  a  riparian  proprietor,  he  is  en- 
titled to  the  entire  flow  of  the  stream,  as  against  any  diminu- 
tion thereof  by  one  not  a  riparian  owner,  and  the  claim  of 
the  latter  of  a  right  to  divert  a  portion  of  the  water  authorizes 
the  riparian  proprietor  to  invoke  the  aid  of  a  court  of  equity 
to  prevent  such  claim  from  ripening  into  a  right.48  But  a 
prior  appropriator  of  water  is  not  entitled  to  an  injunction 
restraining  the  diversion  of  water,  where  it  appears  that  he 
will  be  only  nominally  damaged  by  the  acts  done  and  threat- 
ened by  the  defendant.  Thus,  where  a  landowner  diverts 
water  for  the  irrigation  of  his  land,  but  fails  to  use  it  for  this 
purpose,  and  allows  it  to  run  to  waste,  he  cannot  enjoin  an- 
other from  turning  the  water  away  from  his  headgate,  to  be 
used  by  the  defendant  on  his  own  land.49  But  the  fact  that 
the  injury  is  incapable  of  ascertainment,  or  of  being  com- 

194;  Gould  v.  Eaton,  117  Cal.  539,  49  Pac.  577;  Brown  v.  Ashley, 
16  Nev.  311;  Rigney  v.  Tacoma  Light  &  Water  Co.,  9  Wash.  576,  38 
Pac.  147. 

*~  Cruse  v.  McCauley,  96  Fed.  369. 

**  Gould  v.  Eaton,  117  Cal.  539,  49  Pac.  577.     But  see  Modoc  Land 
&  Live  Stock  Co.  v.  Booth,  102  Cal.  151,  36  Pac.  431. 

•*»  Peregoy  v.  McKissick,  79  Cal.  572,  21  Pac.  967. 

(219) 


§  114  LAW  OF  IRRIGATION.  [Ch.  10 

puted  in  damages,  and  therefore  only  nominal  damages  can  be 
awarded,  will  not  deprive  a  riparian  proprietor  of  a  right  to 
an  injunction  restraining  the  unlawful  diversion  of  the  water 
of  the  stream  flowing  past  his  land.50 

g    114.    Same— Jurisdiction  of  a  Court  of  Equity. 

A  court  of  equity,  in  a  proper  case,  will  grant  an  injunction 
restraining  the  unlawful  diversion  of  water.51  And  the 
plaintiff  is  not  required  to  establish  his  right  at  law  by  re- 
covering a  judgment  in  damages  before  applying  for  an  in- 
junction. He  must,  indeed,  clearly  make  out  his  right  in 
equity,  and  show  that  money  damages  will  not  give  him 
adequate  compensation.  But  if  he  proves  his  case,  relief 
will  be  granted,  although  he  has  not  demanded  damages  at 
law.  Where  the  unlawful  diversion  is  a  continuing  one,  or 
future  diversions  are  threatened,  the  remedy  at  law  is  plainly 
inadequate,  and  a  resort  to  a  court  of  equity  is  necessary  and 
proper  in  order  to  obtain  complete  relief.52  And  where  an 
injunction  against  the  threatened  diversion  is  asked  for, 

noHeilbron  v.  Fowler  Switch  Canal  Co.,  75  Cal.  426,  17  Pac.  535. 

si  United  States  Freehold  Land  &  Emigration  Co.  v.  Gallegos,  89 
Fed.  769;  Johnson  v.  Superior  Court,  65  Cal.  567,  4  Pac.  576;  Bar- 
rows v.  Fox,  98  Cal.  63,  32  Pac.  811;  Salazar  v.  Smart,  12  Mont.  395, 
30  Pac.  676;  Brown  v.  Ashley,  16  Nev.  311;  Jerrett  v.  Mahan,  20 
Nev.  89,  17  Pac.  12;  Rigney  v.  Tacoma  Light  &  Water  Co.,  9  Wash. 
576,  38  Pac.  147.  See  Stein  Canal  Co.  v.  Kern  Island  Irr.  Canal  Co., 
53  Cal.  563;  Bliss  v.  Johnson,  76  Cal.  597,  16  Pac.  542,  18  Pac.  785; 
McPhail  v.  Forney,  4  Wyo.  556,  35  Pac.  773. 

52  Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674;  Rigney  v.  Tacoma 
Light  &  Water  Co.,  9  Wash.  576,  38  Pac.  147.  It  should  be  noted 
that  an  action  at  law  of  ejectment  will  not  lie  to  recover  possession 
of  a  watercourse  considered  apart  from  the  land,  and  hence  a  suit 
in  equity  becomes  necessary  to  obtain  relief.  Swift  v.  Goodrich, 
70  Cal.  103,  11  Pac.  561. 
(220) 


Oh.  10]  ACTIONS  FOR  INTERFERENCE.  §    115 

the  fact  that  the  diversion  has  already  actually  begun 
will  not  prevent  the  granting  of  an  injunction  restraining 
the  continuance  of  such  diversion.53  And  it  has  been  held 
that  a  court  of  equity  will  not  interfere  to  prevent  an  inter- 
ference with  a  water  right,  where  there  has  been  no  overt 
hostile  act  on  the  part  of  the  person  complained  of, — a  mere 
intent,  not  acted  upon,  is  not  actionable.54 

A  court  of  equity  may  not  only  enjoin  the  unlawful  di- 
version of  water,  but  may  also  require  the  removal  of  the 
obstructions  by  which  the  diversion  is  made,  in  order  that  the 
•water  may  flow  undisturbed  in  the  stream.55 

In  an  equitable  action  to  enjoin  the  unlawful  diversion  of 
water,  and  to  abate  the  defendant's  dam  as  a  nuisance,  and 
•also  to  recover  damages  for  the  past  diversion,  the  plaintiff  is 
not  entitled  to  a  jury.56  But  in  such  case  the  court  may  call 
a  jury,  and  direct  proper  issues  to  be  framed  and  submitted 
-to  it.  The  verdict  of  the  jury  on  these  issues,  however,  is 
advisory  only,  and  the  court  may  adopt  or  reject  it,  and  itself 
find  the  facts.57 

S    115.    Same— Pleading. 

The  ordinary  rules  of  pleading  apply  to  actions  for  the  un- 
lawful diversion  of  water.  Possibly  a  high  standard  of  tech- 
nical accuracy  in  the  preparation  of  pleadings  in  irrigation 
•cases  should  not  be  required,  lest  the  products  of  the  soil  be 

53  Conkling  v.  Pacific  Imp.  Co.,  87  Cal.  296,  25  Pac.  399. 

s*  Umatilla  Irr.  Co.  v.  Umatilla  Imp.  Co.,  22  Ore.  366,  30  Pac.  30. 

55  Johnson  v.  Superior  Court,  65  Cal.  567,  4  Pac.  576. 

se  Evans  v.  Ross  (Cal.,  1885)  8  Pac.  88;  Churchill  v.  Baumann, 
104  Cal.  369,  36  Pac.  93,  38  Pac.  43. 

57  Evans  v.  Ross  (Cal.,  1885)  8  Pac.  88;  Saint  v.  Guerrerio.  17 
-Colo.  448;  30  Pac.  335. 

(221) 


§    115  LAW  OF  IRRIGATION.  [Ch.  10 

destroyed  while  time  is  wasted  on  mere  matters  of  form.  A 
plain  statement  of  the  substantial  facts  should  be  held  suffi- 
cient.58 

In  order  to  entitle  the  plaintiff  to  the  relief  sought,  he  must 
show  in  his  complaint  that  he  has  a  prior  right  to  the  water, 
and  that  the  defendant  has  unlawfully  deprived  him  of  it.59 
A  statement  of  mere  legal  conclusions  in  a  complaint  is,  of 
course,  insufficient.  Where  the  plaintiff  claims  a  superior 
right  by  virtue  of  a  prior  appropriation,  it  is  not  sufficient  to 
allege  a  priority  of  appropriation  without  setting  forth  the 
facts  upon  which  such  claim  is  based,  for  this  would  be  merely 
to  plead  a  conclusion  of  law.  The  complaint  should  contain 
every  essential  averment  necessary  to  show  the  existence  of 
such  right  under  the  law  of  appropriation.60  A  complaint 
in  which  the  plaintiff  alleges  that  he  is  the  owner  of  cer- 
tain land,  requiring  .water  for  irrigation,  and  that  he  has 
actually  diverted,  and  up  to  the  time  of  the  alleged  unlawful 
diversion  by  the  defendant,  has  actually  used,  all  the  water 
in  question  upon  his  land,  is  sufficient  to  show  the  plaintiff's 
right.61 

ss  Per  Elliott,  J.,  in  Farmers'  High  Line  Canal  &  Reservoir  Co. 
v.  Southworth,  13  Colo.  Ill,  21  Pac.  1028. 

oo  Downing  v.  Agricultural  Ditch  Co.,  20  Colo.  546,  39  Pac.  336. 

6«  Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth,  13 
Colo.  Ill,  21  Pac.  1028;  Downing  v.  Agricultural  Ditch  Co.,  20  Colo. 
546,  39  Pac.  336;  Farmers'  Independent  Ditch  Co.  v.  Agricultural 
Ditch  Co.,  3  Colo.  App.  255,  32  Pac.  722.  In  this  case  the  court  held 
that,  in  an  action  by  a  ditch  company  on  behalf  of  itself  and  its 
stockholders  to  restrain  the  diversion  of  water,  the  complaint  should 
state  the  names  of  the  users  from  the  plaintiff's  ditch,  the  date  of 
their  appropriations,  and  other  facts  relating  to  their  individual 
appropriations.  This  ruling  was  reversed  in  22  Colo.  513,  45  Pac. 
444. 

si  Salazar  v.  Smart,  12  Mont.  395,  30  Pac.  676.     Where,  in  a  suit 

(222) 


Ch.  10]  ACTIONS  FOR  INTERFERENCE.  §  115 

Where  the  plaintiff  alleges  in  his  complaint  that  he  has  a 
right  to  the  water,  an  allegation  that  he  is  in  a  position  to 
use  it  himself  or  furnish  it  to  others  is  unnecessary.62 

Where  the  plaintiff  claims  a  prescriptive  right  to  the  use 
of  the  water,  he  must,  of  course,  allege  facts  showing  the  ex- 
istence of  such  right.  An  allegation  that  he  has,  for  the 
prescriptive  period  before  the  diversion  complained  of,  "had 
the  undisputed  usufructuary  right  to  the  use  of  the  water," 
is  not  sufficient,  for  such  use  is  not  necessarily  adverse.63 

In  an  action  for  an -injunction  to  restrain  the  unlawful  di- 
version of  water,  it  must  be  alleged  in  the  complaint  that  the 
diversion  is  continuing,  and  that  the  defendant  threatens  to 
continue  it.64  A  bill  disclosing  a  continuing  trespass  on  the 
complainant's  lands  by  a  number  of  defendants,  and  a  con- 
stant and  wrongful  diversion  of  water  by  them  from  a 
stream  flowing  through  complainant's  lands,  which  is  con- 
tinually depreciating  their  value,  was  held  sufficient  to  en- 
title the  complainant  to  an  injunction,  the  facts  averred  being 
admitted.65  In  an  action  for  an  injunction  to  restrain  the 
unlawful  interference  with  the  flow  of  water  in  the  plaintiff's 

brought  to  recover  damages  for  diverting  water  claimed  for  irri- 
gating purposes,  and  for  an  injunction,  the  defendant  made  no 
claim  to  be  the  riparian  proprietor  of  the  stream,  but  claimed  the 
waters  by  prior  appropriation  and  prescription,  it  was  held  that 
to  support  the  claim  for  damages,  the  material  allegations  in  the 
complaint  were  prior  appropriation  of  the  water  by  the  plaintiff, 
and  the  diversion  thereof  by  the  defendant,  and  that  it  was  unnec- 
essary to  aver  riparian  ownership  in  the  plaintiff.  Jerrett  v.  Ma- 
han,  20  Nev.  89,  17  Pac.  12. 

62  Moore  v.  Clear  Lake  Water  Works,  68  Cal.  146,  8  Pac.  816. 

<«  Heintzen  v.  Binninger,  79  Cal.  5,  21  Pac.  377. 

e*  Ball  v.  Kehl,  87  Cal.  505,  25  Pac.  679. 

65  United  States  Freehold  Land  &  Emigration  Co.  v.  Gallegos,  89 

Fed.  769. 

(223) 


§  115  LAW  OF  IRRIGATION.  [Ch.  10 

ditch,  an  allegation  in  the  complaint  that  the  plaintiff  is  the 
owner  of  lands  planted  in  fruit  trees,  which,  if  deprived  of 
such  water,  will  die,  is  a  sufficient  allegation  that  the  damage 
from  the  threatened  injury  would  be  irreparable.60 

Where  a  suit  is  brought  to  recover  damages  for  the  unlawful 
diversion  of  water,  and  also  for  an  injunction,  in  order  to  en- 
title the  plaintiff  to  an  injunction,  it  is  only  necessary,  in 
addition  1o  the  facts  averred  in  the  complaint  upon  which 
the  claim  for  damages  is  based,  to  aver  facts  sufficient  to  ob- 
tain equitable  relief,  without  repeating  the  other  averments.67 

The  plaintiff's  recovery  should,  of  course,  be  limited  to  the 
damages  alleged  and  prayed  for  in  the  complaint.  Thus, 
where,  in  an  action  to  recover  damages  for  loss  of  crops  caused 
by  the  defendant's  interfering  with  the  plaintiff's  irrigating 
ditch,  and  for  an  injunction,  the  plaintiff  alleged  in  his  com- 
plaint the  loss  of  crops  in  1897,  and  prayed  for  damages 
therefor,  and  obtained  an  injunction  for  the  year  1898,  it 
was  held  to  be  error  to  award  damages  for  loss  of  crops  in 
1898  also,  no  amendment  or  supplemental  complaint  cover- 
ing that  year  having  been  filed.68  But  it  is. immaterial  that 
the  plaintiff  alleges  more  extensive  rights  than  he  really  has. 
Thus,  equity  will  grant  relief  in  a  case  where  the  court  finds 

»•>«  Smith  v.  Stearns  Rancho  Co.  (Gal.,  1900)  61  Pac.  662. 

si  Jerrett  v.  Mahan,  20  Nev.  89,  17  Pac.  12. 

ss  Miller  v.  Douglas  (Ariz.,  1900)  60  Pac.  722.  Where,  in  an 
action  for  the  diversion  of  water,  the  plaintiff  claimed  the  right 
to  500  inches,  and  the  jury  awarded  him  800  inches,  and  $1,000 
damages  for  the  unlawful  diversion,  and  the  plaintiff  remitted  the 
excess  of  300  inches,  it  was  held  that  judgment  entered  accordingly 
could  not  stand,  for,  if  the  nature  of  the  case  admitted  of  the  re- 
mitting by  the  plaintiff  of  a  portion  of  the  water  awarded  him,  he 
was  not  entitled  to  $1,000  damages.  Dougherty  v.  Haggin,  61 
Cal.  305. 

(224) 


Ch.  10]  ACTIONS  FOR  INTERFERENCE. 

that  the  quantity  of  water  appropriated  by  the  plaintiff  is 
less  than  that  alleged  in  his  complaint.69 

It  has  been  held  that  where,  in  an  action  to  recover  for  the 
wrongful  diversion  of  water,  the  defendant  relies  upon  the 
plaintiff's  consent  to  the  diversion  as  a  defense,  such  defense 
need  not  be  specially  pleaded,  but  evidence  thereof  may  be  in- 
troduced under  a  general  denial.  This  is  not  such  new  matter 
as  is  required  to  be  specially  pleaded,  since  neither  its  pur- 
pose nor  effect  is  to  discharge  or  avoid  a  cause  of  action 
theretofore  existing,  but  to  prove  that  the  alleged  cause  of 
action  never  existed  by  showing  that  the  material  allegation 
of  injury  and  damage  to  the  plaintiff  is  not  true.70  But 
where  the  defendant  relies  on  a  right  to  divert  the  water  ac- 
quired by  adverse  possession,  he  must  plead  such  defense  in 
his  answer,  or  he  will  not  be  permitted  to  introduce  evidence 
in  support  of  it.71  Where,  in  an  action  to  maintain  a  ri- 
parian right  to  water,  the  defense  is  a  prescriptive  right  of 
diversion,  such  defense  is  sufficiently  pleaded  under  the  Cali- 
fornia Code  of  Civil  Procedure,  by  setting  up  the  statute 
of  limitations  by  reference  to  the  section  of  the  Code  under 
which  the  right  was  acquired.72 

The  courts  will  be  liberal  in  allowing  amendments  to  the 
pleadings  when  these  do  not  seriously  impair  the  rights  of 
the  opposite  party.73  This  is  particularly  the  case  in  respect 

6»  Hill  v.  Lenormand   (Ariz.,  1888)   16  Pac.  266. 
TO  Churchill  v.  Baumann,  95  Cal.  541,  30  Pac.  770. 

71  American   Co.   v.   Bradford,   27    Cal.    361    (mining   case).     See 
Lillis  v.  Emigrant  Ditch  Co.,  95  Cal.  553,  30  Pac.  1108. 

72  Alhambra  Addition  Water  Co.  v.   Richardson,   72   Cal.   598,   14 
Pac.  379. 

73  Saint  v.  Guerrerio,  17  Colo.  448,  30  Pac.  335.     In  an  action  for 
damages   for   breach   of   contract   to   furnish   water   for   irrigation, 

(225) 


§  116  LAW  OF  IRRIGATION.  [Ch.  10 

to  amendments  to  the  answer.  The  defendant  may  generally 
set  up  as  many  defenses  as  he  may  have.  And  he  may  be 
permitted  to  amend  his  answer  by  omitting  the  defense  set 
up  in  the  original  answer,  and,  by  new  averments,  set  up  an 
entirely  new  defense.74 

§    116.    Action  to  Quiet  Title. 

An  action  may  be  maintained  to  quiet  title  to  water  rights 
acquired  by  appropriation.75  The  right  to  maintain  the  ac- 
tion does  not  depend  upon  an  actual  interference  with  the 
plaintiff's  right.  The  assertion  of  an  adverse  claim  is  all 
that  is  required.76  A  water  right  being  real  estate,  it  is  held 
in  Colorado,  where  the  administrator  is  not  entitled  to  the 
possession  of  the  decedent's  real  estate,  that  an  action  to  quiet 
title  thereto  cannot  be  maintained  by  an  administrator.77  In 
such  action,  the  pleadings  are  subject  to  the  ordinary  rules 
of  pleading.  Thus,  a  general  demurrer  to  a  whole  complaint 
cannot  be  sustained  if  the  complaint  states  facts,  though  im- 
perfectly, showing  that  the  plaintiff  .  is  entitled  to  relief, 
either  legal  or  equitable.78  Where  in  an  action  to  quiet  title 
to  water  rights  claimed  by  the  plaintiff  as  a  riparian  owner, 
and  alleged  to  be  appurtenant  to  certain  of  his  lands,  the 
plaintiff's  ownership  of  such  lands  is  deriied,  the  burden  is 
upon  him  to  prove  title  thereto.79 

the   court,   in   its   discretion,   may   permit  the   amendment  of   the 
complaint.     Bean  v.  Stoneman,  104  Cal.  49,  37  Pac.  777,  38  Pac.  39. 

74  Gould  v.  Stafford,  101  Cal.  32,  35  Pac.  429. 

75  See  Salazar  v.  Smart,  12  Mont.  395,  30  Pac.  676. 

76  Peregoy  v.  Sellick,  79  Cal.  568,  21  Pac.  966. 

77  Travelers'  Ins.  Co.  v.  Childs,  25  Colo.  360,  54  Pac.  1020. 
78Hulsman  v.   Todd,   96   Cal.   228,   31   Pac.   39.     See,  also,  as  to 

pleadings  in  such  actions,  Peregoy  v.  Sellick,  79  Cal.  568,  21  Pac. 
966;    Harris  v.  Harrison,  93  Cal.  676,  29  Pac.  325. 

7»  Boehmer  v.  Big  Rock  Irr.  Dist.,  117  Cal.  19,  48  Pac.  908. 

(226) 


Ch.  10]  ACTIONS  FOR  INTERFERENCE.  §   117 

§    117.    Pollution  of  Water. 

A  prior  appropriate!'  of  the  water  of  a  stream  for  irriga- 
tion is  entitled  not  only  to  the  quantity  of  water  covered  by 
his  appropriation,  but  also  to  have  the  same  continue  to  flow 
without  being  so  polluted  or  contaminated  by  the  discharge 
of  refuse  and  other  matter  therein  as  to  render  it  unfit  for 
use  for  purposes  of  irrigation.  And  he  may  maintain  an 
action  to  recover  damages  for  such  pollution,  or  to  restrain 
its  continuance.80  What  deterioration  in  quality  would  in- 
juriously affect  the  water  for  irrigation,  and  whether  or  not 
the  deterioration  complained  of  in  a  particular  case  had  this 
effect,  are  matters  of  fact  for  the  consideration  of  the  jury.81 
In  order  to  entitle  an  irrigator  to  an  injunction  restraining 
the  pollution  of  the  water  supplying  his  ditch,  it  must  ap- 
pear that  he  will  be  damaged  by  such  pollution.  Thus,  the 
owner  of  a  placer  mine  having  a  prior  right  to  the  use  of  the 
water  of  a  stream  will  not  be  enjoined  from  working  his 
mine  so  that  the  tailings  are  carried  into  the  irrigating  ditch, 
and  upon  the  land  of  a  subsequent  appropriator  of  the  water, 
where  this  result  is  a  necessary  incident  to  the  use  of  the 
water  in  placer  mining,  and  no  real  damage'  is  done  to  the 
irrigator.82 

The  pollution  of  the  water  of  an  irrigating  ditch  ordinarily 
constitutes  a  private  nuisance,  which  a  court  of  equity  will 
enjoin  as  such.83  And  in  Colorado,  where  the  supreme  court 

so  Montana  Co.  v.  Gehring,  75  Fed.  384;  Cushman  v.  Highland 
Ditch  Co.,  3  Colo.  App.  437;  33  Pac.  344;  Crane  v.  Winsor,  2  Utah, 
248. 

si  Montana  Co.  v.  Gehring,  75  Fed.  384. 

82  McCauley  v.  McKeig,  8  Mont.  389,  21  Pac.  22. 

8s  Crane  v.  Winsor,  2  Utah.  248. 

(227) 


§   117  LAW  OF  IRRIGATION.  [Ch.  10 

will  assume  original  jurisdiction  of  injunction  proceedings 
only  in  cases  of  a  public  character,  it  has  been  held  that  the 
fact  that  a  large  number  of  persons  are  interested,  and  great 
interests  extending  into  several  counties  are  involved,  is  not 
sufficient  to  give  the  case  a  public  character,  so  that  the 
supreme  court  will  assume  original  jurisdiction  of  a  suit  to 
restrain  the  pollution  of  a  stream  so  as  to  render  its  waters 
unfit  for  irrigating  purposes.84  It  has  also  been  held,  how- 
ever that  the  befouling  of  the  waters  of  a  canal  from  which 
&  number  of  persons,  more  than  three,  obtained  water  for 
irrigation  and  other  purposes,  so  as  to  render  it  unfit  for  use, 
•created  a  public  nuisance,  under  a  statute  declaring  that  a 
j.niblic  nuisance  consists,  among  other  things,  in  unlawfully 
•doing  an  act  which  in  any  way  renders  three  or  more  persons 
insecure  in  life  or  the  use  of  property.  It  was  further  held 
in  this  case  that  the  right  to  maintain  such  nuisance  could 
not  be  gained  by  prescription.85 

An  action  to  enjoin  the  defendant  from  running  mining 
debris  and  other  matter  into  the  plaintiff's  irrigating  ditch  and 
upon  his  land,  and  for  damages,  must  be  tried  as  a  whole,  and 
not  the  two  causes  of  action  separately.  In  such  action,  the 
court  must  try  the  issue  raised  as  to  the  injunction,  and  then, 
on  the  demand  of  either  party,  submit  the  question  of  dam- 
ages to  a  jury,  and  thereafter  render  the  proper  judgment. 
It  is  error  to  try  the  issue  as  to  the  injunction,  and  enter 
judgment  thereon  and  continue  the  question  of  damages  to  a 
subsequent  term  of  the  court.86 

s*  People  v.  Rogers,  12  Colo.  278,  20  Pac.  702. 

S3  North  Point  Consolidated  Irr.  Co.  v.  Utah  &  S.  L.  Canal  Co., 
16  Utah,  246,  52  Pac.  168. 

se  Stocker  v.  Kirtley  (Idaho,  1900)  59  Pac.  891.  But  see,  as  to 
the  right  to  a  jury  in  equitable  actions,  ante,  §  114. 

(228) 


Ch.  11]  STORAGE  OF  WATER.  §  118 


CHAPTER  XI. 
THE  STORAGE  OP  WATER. 

§  118.     Generally. 

119.    Liability  of  Reservoir  Owner  for  Damages  Caused  by  Res- 
ervoir. 

§    118.    Generally. 

To  a  limited  extent,  storage  reservoirs  have  been  construct- 
ed throughout  the  arid  region  for  the  purpose  of  storing,  in 
times  of  abundance,  water  that  might  otherwise  run  to  waste, 
so  as  to  increase  the  available  supply  in  times  of  scarcity. 
These  reservoirs,  when  of  any  considerable  size,  are  usually 
constructed  and  maintained  by  irrigation  companies,  but 
private  reservoirs  are  not  unknown.  The  right  to  construct 
reservoirs,  and  so  to  store  water,  is  recognized  by  the  state 
and  federal  statutes,  and  the  storage  of  water  is  in  several 
instances  made  the  subject  of  express  statutes.1  There  has 
been  as  yet  but  little  litigation  on  the  subject  of  reservoirs 
and  water  storage,  and  consequently  there  is  very  little  law 
on  the  subject.  Undoubtedly,  however,  all  questions  that 
may  arise  in  this  connection  must  be  decided  in  accordance 
with  the  well-settled  legal  principles  governing  the  use  of 
water  for  irrigation.2  The  mere  fact  that  the  water  diverted 

1  See  stautes  in  Appendix.      The  policy  of  the  state  and  federal 
governments   has   always   been  to   encourage   the   preservation   of 
water  for  irrigation  and   other  purposes.     Larimer   Co.   Reservoir 
Co.  v.  People,  8  Colo.  614,  9  Pac.  794. 

2  See,   generally,   the   following    cases,    in   which   the   rights   of 
reservoir  owners   were  involved:     Rupley  v.  Welch,   23   Gal.  453; 
Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld  Irr.  Co.,  24  Colo. 

(229) 


§  118  LAW  OF  IRRIGATION.  [Ch.    11 

for  irrigation  is  not  immediately  used,  but  is  kept  in  reser- 
voirs until  needed,  does  not  necessarily  affect  the  legality  of 
the  diversion.  Such  delay  may,  under  the  circumstances  of 
the  case,  be  entirely  reasonable,  within  the  rule  that  the  ap- 
propriator  has  a  reasonable  time  after  diversion  within  which 
to  apply  the  water  to  beneficial  use. 

In  Colorado  it  is  provided  by  statute  that  "persons  de- 
sirous to  construct  and  maintain  reservoirs  for  the  purpose 
of  storing  water  shall  have  the  right  to  take  from  any  of  the 
natural  streams  of  the  state  and  store  away  any  unappro- 
priated water  not  needed  for  immediate  use  for  domestic  or 
irrigating  purposes."3  Under  this  statute,  of  course,  a  res- 
ervoir owner  can  acquire  by  prior  appropriation  no  right  to 
fill  his  reservoir  which  would  conflict  with  any  right  of  a 
ditch  owner  to  use  the  water  for  irrigation,  when  needed  for 
immediate  use,  even  though  the  priority  of  the  latter  was 
junior  in  time  to  the  construction  of  the  reservoir.4  And  an 
irrigation  company  which  has  acquired  a  right  to  a  certain 
quantity  of  water  for  irrigation  has  no  right,  by  virtue  of 
such  priority,  to  divert  an  additional  quantity  of  water  for 
storage,  so  as  to  interfere  with  the  right  of  another  appro- 
priator,  whose  right  is  prior  to  the  company's  appropriation 

322,  51  Pac.  496;  Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld 
Reservoir  Co.,  25  Colo.  87,  53  Pac.  386,  reversing  7  Colo.  App.  225, 
42  Pac.  1020;  Cache  La  Poudre  Reservoir  Co.  v.  Water  Supply  & 
Storage  Co.,  25  Colo.  161,  53  Pac.  331;  Church  v.  Stillwell,  12  Colo. 
App.  43,  54  Pac.  395;  Rockwell  v.  Highland  Ditch  Co.,  1  Colo.  App. 
396,  29  Pac.  285;  Beaver  Brook  Reservoir  &  Canal  Co.  v.  St.  Vrain 
Reservoir  &  Fish  Co.,  6  Colo.  App.  130,  40  Pac.  1066;  New  Love- 
land  &  G.  Irr.  &  Land  Co.  v.  Consol.  H.  S.  Ditch  &  R.  Co.  (Colo. 
Sup.,  1900)  62  Pac.  366. 

s  Mills'  Ann.  St.  §  2270. 

*  Water    Supply    &    Storage    Co.    v.    Tenney,    24    Colo.    344,    51 
Pac.  505. 
(230) 


Ch.  11]  STORAGE  OF  WATER.  §  119 

for  storage,  though  subsequent  to  that  for  irrigation.5  But 
a  junior  appropriator  cannot  restrain  the  diversion  of  water 
for  storage,  where  it  does  not  appear  that  such  diversion  di- 
minishes the  quantity  of  water  that  would  otherwise  reach 
his  land.6 

Public  reservoirs  for  the  storage  of  water  for  irrigation 
and  domestic  uses  are  internal  improvements,  within  the 
meaning  of  the  act  of  congress  of  March  3,  1875,  providing 
for  the  admission  of  Colorado  as  a  state  into  the  Union,  and 
directing  that  certain  moneys  shall  be  paid  to  the  state  for 
making  such  internal  improvements  as  the  legislature  shall 
direct;  and  the  general  assembly  may  lawfully  make  appro- 
priations from  such  fund  for  the  construction  of  such  works.7 
A  person  desiring  to  store  water  may  use  as  a  reservoir  a 
natural  depression  including  the  source  or  bed  of  a  stream, 
provided  the  superior  rights  of  prior  appropriators  are  not 
thereby  impaired.8 

§    119.    Liability  of  Reservoir  Owner  for  Damages    Caused  by 
Reservoir. 

The  damming  and  retaining  of  large  bodies  of  water  at 
elevations  sufficiently  great  to  allow  the  water  to  be  used  for 
irrigation  is  recognized  as  a  danger  and  continual  menace  to 
lower  proprietors  on  the  course  of  the  stream  through  which 
the  water  would  find  its  natural  outlet,  and  consequent^  the 
legislatures  of  Colorado  and  one  or  two  other  states  have 

5  Colorado  Milling  &  Elevator  Co.  v.  Larimer  &  Weld  Irr.  Co. 
(Colo.  Sup.  1899)  56  Pac.  185. 

s  Larimer  &  Weld  Reservoir  Co.  v.  Cache  La  Poudre  Irr.  Co.,  8 
Colo.  App.  237,  45  Pac.  525,  affirmed  25  Colo.  144,  53  Pac.  318. 

7  In  re  Senate  Resolution,  12  Colo.  287,  21  Pac.  484. 

8  Larimer  Co.  Reservoir  Co.  v.  People,  8  Colo.  614,  9  Pac.  794. 

(231) 


§  119  LAW  OF  IRRIGATION.  [Ch.  11 

made  the  reservoir  owner  at  least  substantially  an  insurer  of 
the  life  and  property  of  others  from  injury  from  the  bursting 
or  overflow  of  the  reservoir.  The  Colorado  statute  provides 
that  "the  owners  of  the  reservoirs  shall  be  liable  for  all  dam- 
ages arising  from  leakage  or  overflow  of  the  waters  therefrom, 
or  by  floods  caused  by  breaking  of  the  embankments  of  such 
reservoirs."9  A  person  may  be  the  owner  of  a  reservoir  with- 
in this  section,  although  his  interest  therein  be  less  than  an 
absolute  fee.  Thus,  a  lessee  of  a  reservoir  is  within  the 
meaning  of  the  statute.10  The  plaintiff  in  an  action  for  dam- 
ages under  the  statute  is  not  required  to  allege  or  prove  neg- 
ligence. A  case  at  least  prima  facie  is  made  when  the  dam- 
age and  cause,  by  breaking  of  the  reservoir,  are  establish- 
ed.11 

The  statute  making  the  owners  of  reservoirs  liable  for  dam- 
ages occasioned  thereby  does  not  change  the  common-law  rule 
concerning  injunctive  relief,  nor  deprive  a  court  of  equity 
of  jurisdiction  to  restrain  the  filling  of  a  reservoir,  when  the 
remedy  at  law  is  inadequate  to  afford  relief.12  And  in  a 
suit  for  an  injunction,  evidence  that  other  persons  are  main- 
taining reservoirs  in  the  same  locality  is  irrelevant  and  inad- 
missible, for  this  fact  would  not  give  the  defendant  a  right 
to  maintain  his  reservoir,  to  the  injury  of  adjacent  lands.13 

»  Mills'  Ann.   St.   §   2272. 

10  Larimer  Co.  Ditch  Co.  v.  Zimmerman,  4  Colo.  App.  78,  34  Pac. 
1111. 

11  Id. 

12  Sylvester  v.  Jerome,  19  Colo.  128,  34  Pac.  760. 
is  Sylvester  v.  Jerome,  19  Colo.  128,  34  Pac.  760. 

(232) 


Ch.  12]  PUBLIC  CONTROL  OF  IRRIGATION.  §  120 


CHAPTER  XII. 
PUBLIC  CONTROL  OF  IRRIGATION. 

§  120.  Generally. 

121.  In  Colorado. 

122.  In  Wyoming. 

123.  In  Other  States. 

§    120.    Generally. 

By  the  constitutions  of  several  of  the  states,  the  water  of 
the  natural  streams  within  the  state  is  declared  to  be  the  prop- 
erty of  the  public  or  of  the  state.1  We  have  seen  that  the 
use  of  water  for  irrigation,  sometimes  at  least,  is  a  public 
use.2  From  these  propositions  it  necessarily  follows  that 
in  those  states  in  which  the  constitutional  provisions  men- 
tioned above  exist,  the  use  of  water  for  irrigation  must  be 
subject  to  the  control  of  the  state.  In  California  and  Idaho 
the  use  of  all  water  appropriated  for  sale,  rental  or  distribu- 
tion is  expressly  declared  to  be  a  public  use,  and  subject  to 
the  regulation  and  control  of  the  state,3  and  in  Wyoming  the 
constitution  vests  the  control  of  water  generally  in  the  state.4 

But  irrespective  of  any  such  constitutional  provisions,  the 

1  Const.  Colo.  art.  15,  §  5;  Const.  N.  D.  art.  17,  §  210;  Bigelow  v. 
Draper,  6  N.  D.  152;    Const.  Wyo.  art.   8,  §   1;    Farm    Inv.   Co.  v. 
Carpenter   (Wyo.,  1900)    61  Pac.  258. 

2  See  ante,  §  4. 

3  Const.  Cal.  art.  14,  §  1;   Const.  Idaho,  art.  15,  §  1;   Lanning  v. 
Osborne,  76  Fed.  319;    San  Diego  Land  &  Town  Co.  v.  Sharp,  97 
Fed.  394;   McCrary  v.  Beaudry,  67  Cal.  120,  7  Pac.  264;   Merrill  v. 
Southside  Irr.  Co.,  112  Cal.  426,  44  Pac.  720;   Wilterding  v.  Green 
(Idaho,  1896)  45  Pac.  134. 

*  Const.  Wyo.  art.  2,  §  31. 

(233) 


§  120  LAW  OF  IRRIGATION.  [Ch.  12 

state  has  undoubted  power  to  regulate  the  use  of  water  with- 
in its  boundaries  for  irrigation  under  its  general  power  to 
regulate  the  affairs  of  its  citizens,  so  far  as  the  public  in- 
terests may  be  affected  thereby.  As  has  been  said:  "The 
authority  of  the  general  assembly  to  enact  laws  regulating  the 
distribution  of  water  to  actual  appropriators,  provided  they 
do  not  substantially  affect  constitutional  or  vested  rights, 
is  undoubted."5  In  all  of  the  arid  states,  statutes  have  been 
enacted  providing  for  the  regulation  and  control  of  the  dis- 
tribution and  use  of  water  for  irrigation.  In  several  states 
the  legislature  has  provided  elaborate  systems  of  control, 
which  will  be  considered  in  the  succeeding  sections  of  this 
chapter. 

5  Elliott,  J.,  in  Farmers'  High  Line  Canal  &  Reservoir  Co.  v. 
Southworth,  13  Colo.  Ill,  21  Pac.  1028.  While  the  legislature 
cannot  prohibit  the  appropriation  or  diversion  of  unappropriated 
water,  for  useful  purposes,  from  natural  streams  upon  the  public 
domain,  it  has  the  power  to  regulate  the  manner  of  effecting  such 
appropriation  or  diversion  by  reasonable  and  constitutional  legis- 
lation. Larimer  County  Reservoir  Co.  v.  People,  8  Colo.  614,  9 
Pac.  794. 

In  White  v.  Farmers'  High  Line  Canal  &  Reservoir  Co.,  22  Colo. 
191,  43  Pac.  1028,  Hayt,  C.  J.,  said:  "The  right  to  the  use  of 
water  in  the  arid  region  is  among  the  most  valuable  property 
rights  known  to  the  law.  Where  there  are  a  large  number  of  con- 
sumers taking  water  from  the  same  ditch,  the  excessive  use  by 
some  may  absolutely  deprive  others  of  water  at  times  when  its 
application  to  the  thirsty  soil  is  absolutely  necessary  to  prevent 
the  total  failure  of  growing  crops.  So,  also,  as  between  different 
ditches,  if  one,  in  case  of  scarcity,  takes  from  a  public  stream 
water  to  which  it  is  not  entitled,  it  must  be  at  the  expense  of 
others.  From  the  very  nature  of  the  business,  controversies  with 
reference  to  the  use  of  water  naturally  led  to  unseeming 
breaches  of  the  peace,  and  to  avoid  these  it  was  found  expedient 
and  necessary  to  provide  complete  rules  of  procedure  governing 
the  taking  of  water  from  the  public  streams  of  the  state,  and 

(234) 


Oh.  12]  PUBLIC  CONTROL  OF  IRRIGATION.  §   121 

§    121.    In  Colorado. 

The  state  of  Colorado  is  divided  by  statute  into  six  "water 
divisions,"6  comprising  sixty-nine  "water  districts;"7  the 
districts  being  composed  of  lands  irrigated  from  ditches  tak- 
ing water  from  certain  designated  streams.  The  supervision 
of  irrigation  in  the  state  is  committed  to  the  following  offi- 
cers, named  in  the  order  of  their  relative  superiority:  A 
state  engineer,  a  superintendent  of  irrigation  for  each  divi- 
sion, and  a  water  commissioner  for  each  district, — all  these 
officers  being  appointed  by  the  governor. 

The  state  engineer  has  general  supervising  control  over 
the  public  waters  of  the  state.  He  is  required  to  measure 
the  flow  of  streams,  and  compute  the  discharge ;  to  collect  all 
necessary  data  and  information  as  to  dams  and  reservoirs 
to  be  constructed,  and  the  feasibility  and  economical  construc- 
tion of  reservoirs  on  eligible  sites,  and  as  to  the  snowfall  in 
the  mountains  each  season,  for  the  purpose  of  predicting  the 
probable  flow  of  water,  and  publish  the  same ;  to  approve  the 
designs  and  plans  for  dams  and  reservoir  embankments  ten 
feet  or  more  in  height ;  and  have  general  charge  over  the  work 
of  division  superintendents  and  district  commissioners,  fur- 
nish them  with  necessary  data  and  information,  and  require 
them  to  report  to  him.  He  is  also  required  to  report  to  the 
governor.  Provision  is  made  for  the  appointment  of  dep- 
uties and  assistants.8 

regulating  its  distribution  to  those  entitled  thereto.  Authority  for 
such  regulations  may  properly  be  based  upon  the  principle  that, 
when  private  property  is  'affected  by  a  public  interest,  it  ceases  to 
be  juris  privati  only.'  " 

e  Mills'   Ann.    St.    §§    2440-2446. 

7  Mills'  Ann.  St.  §§  2310-2380;   Laws  1897,  p.  175.   ' 
s  As  to  the  appointment,  duties,  compensation,  etc.,  of  the  state 
engineer,  see  Mills'  Ann.  St.  §§  2458-2469. 

(235) 


§   121  LAW  OF  IRRIGATION.  [Oh.  12 

Superintendents  of  irrigation  have  general  control  over  the 
water  commissioners  of  the  several  districts  within  their  di- 
visions, and  are  required,  under  the  general  supervision  of 
the  state  engineer,  to  execute  the  laws  relative  to  the  distribu- 
tion of  water  in  accordance  with  the  rights  of  priority  of  ap- 
propriation as  established  by  judicial  decrees,  and  perform 
such  other  functions  as  may  be  assigned  to  them  by  the 
state  engineer.  In  the  distribution  of  water  they  are  to  be 
governed  by  the  statutes  in  force,  but  have  authority  to  make 
other  regulations  not  in  violation  of  the  laws,  but  supple- 
mental thereto,  to  secure  the  equal  distribution  of  water  in 
accordance  with  the  rights  of  priority.  An  appeal  is  allowed 
from  any  order  or  regulation  of  such  superintendents  to  the 
state  engineer  by  any  person,  ditch  company,  or  ditch  owner 
who  may  deem  himself  injured  or  discriminated  against 
thereby. 

Superintendents  are  required  to  commence  the  discharge 
of  their  duties  in  their  respective  divisions  as  soon  as  the 
first  water  commissioner  in  any  district  within  the  division 
shall  be  called  out,  and  to  continue  to  discharge  such  duties 
until  the  last  water  commissioner  in  any  division  ceases  to  be 
needed.9 

Superintendents  have  the  right  to  call  out  water  commis- 
sioners within  their  divisions  whenever  they  may  deem  it 
necessary,  and  have  power  also  to  perform  the  duties  of 
water  commissioners. 

The  superintendents  are  required  to  give  bond,  and  it  is 
provided  that  their  expenses  and  salary  shall  be  paid  pro  rata 
by  the  counties  interested. 

»As  to  superintendents  of  irrigation,  see  Mills'  Ann.  St.  §§  2447- 
2457. 

(236) 


Oh.  12]  PUBLIC  CONTROL  OF  IRRIGATION.  §    112 

The  constitutionality  of  the  act  providing  for  the  appoint- 
ment of  superintendents  of  irrigation  has  been  attacked  on 
the  ground  that  the  purposes  of  the  act  are  not  clearly  ex- 
pressed in  its  title,  and  also  because  its  provisions,  if  en- 
forced, would  deprive  parties  of  their  priority  to  the  use 
of  water  without  due  process  of  law.  The  act  was  held  con- 
stitutional as  against  both  objections.  As  to  the  second  objec- 
tion, it  will  be  noted  that  under  the  act  the  superintendent  is 
required  to  distribute  water  within  his  division  in  accordance 
with  the  decrees  of  courts  having  jurisdiction,  without  re- 
gard to  the  water  districts  in  which  such  decrees  may  have 
been  entered,  although,  by  the  statutes  providing  for  such 
.adjudications,  notice  is  provided  only  for  those  claiming  wa- 
ter in  the  particular  district  the  priority  of  which  is  to  be 
.adjudicated.  No  provision  is  made  for  those  owning  lands 
situate  outside  of  the  district  to  be  made  parties  to  the  pro- 
ceeding, although  the  same  stream  may  be  relied  on  as  the 
.common  source  of  supply,  and  the  different  interests  may 
therefore  be  antagonistic.  But  it  does  not  follow  from  this 
that  the  act  is  in  violation  of  the  inhibition  against  the  tak- 
ing of  property  without  due  process  of  law.  It  was  held  in 
the  case  in  which  the  present  questions  were  raised  that  the 
.-act  clothes  the  superintendent  with  no  judicial  power.  He 
is  required  to  ascertain  and  keep  a  record  of  the  priorities  as 
•established  by  the  decrees  of  the  district  court,  and,  to  the 
best  of  his  ability,  take  care  that  each  ditch  shall  receive  the 
-water  to  which  it 'may  be  entitled  under  such  decrees.  The 
power  conferred  is  executive,  and  not  judicial.  Moreover, 
-while  the  decrees  are  made  prima  facie  evidence  as  between 
the  different  districts,  they  are  not  conclusive.  The  courts 
.are  still  open  for  the  purpose  .of  entertaining  the  usual  pro- 

(237) 


§  121  LAW  OF  IRRIGATION.  [Ch.  12 

ceedings,  statutory  or  otherwise,  that  have  been  found  appro- 
priate for  determining  the  priorities  between  claimants  for 
water  for  irrigation  of  lands  lying  in  different  districts.  The 
act,  therefore,  does  not  provide  for  a  taking  of  property 
without  due  process  of  law.10 

The  statute  provides  that  in  case  any  ditch,  canal  or 
reservoir  in  any  district  within  a  water  division  shall  fail 
to  receive  its  regular  supply  of  water,  the  owner  or  controller 
thereof  may  report  such  fact  to  the  water  commissioner  of 
that  district,  who  shall  immediately  apportion  the  water  in 
his  district,  and  report  such  fact  to  the  superintendent  of 
the  division,  whose  duty  it  shall  be  to  compare  such  report 
with  the  register  of  priorities  kept  by  him,  and  if  any  ditch, 
canal  or  resorvoir  of  any  other  district  of  his  division  is 
receiving  water  to  which  any  ditch,  etc.,  of  any  other  dis- 
trict is  entitled,  he  shall  at  once  order  the  shutting  down  of 
such  postdated  ditches,  etc.,  and  the  water  given  to  the  ditches, 
canals  and  reservoirs  having  the  prior  right  thereto.11  It  is 
held  that  mandamus  to  compel  the  state  engineer  and  other  of- 
ficers charged  with  the  supervision  and  distribution  of  water  to 
close  the  gates  and  shut  off  the  water  from  postdated  ditches 
will  not  lie  under  this  section  as  a  matter  of  course,  but  only 
when  the  rights  of  the  applicant  and  of  third  parties  have 
been  adjudicated  and  judicially  determined.  The  statute 
invests  the  officer  with  a  certain  amount  of  judicial  discre- 
tion in  determining  the  rights  of  the  parties.  He  is  required 
to  find  and  determine  from  the  register  of  priorities  whether 
or  not  water  is  being  improperly  taken  by  any  ditches ;  which, 

10  Farmers'  Independent  Ditch  Co.  v.  Agricultural  Ditch  Co.,  22 
Colo.  513,  45  Pac.  444. 

11  Mills'  Ann.  St.  §  2456. 

(238) 


Oh.  12]  PUBLIC  CONTROL  OF  IRRIGATION.  §   112 

if  any,  ditches  shall  be  closed ;  and,  when  these  ditches  are  so 
closed,  whether  the  applicant  would  be  entitled  to  the  water, 
and  could  make  it  available.12 

It  is  the  duty  of  the  water  commissioners  to  divide  the 
water  in  the  streams  of  their  district  among  the  several 
ditches  taking  water  from  the  same,  according  to  the  prior 
rights  of  each  respectively,  and  "in  whole  or  in  part  to  shut 
and  fasten,  or  cause  to  be  shut  and  fastened,  by  order  given 
to  any  sworn  assistant,  sheriff  or  constable  of  the  county  in 
which  the  head  of  such  ditch  is  situated,  the  headgates  of  any 
ditch  or  ditches  heading  in  any  of  the  natural  streams  of  the 
district,  which,  in  a  time  of  a  scarcity  of  water,  shall  not 
be  entitled  to  water  by  reason  of  the  priority  of  the  rights  of 
others  below  them  on  the  same  stream." 

The  water  commissioners  are  empowered,  and  it  is  made 
their  duty,  "upon  the  application  of  the  owners  of  one  or 
more  ditches  in  their  district,  to  immediately  make,  or  cause 
to  be  made,  a  thorough  examination  of  all  ditches  within 
their  district  for  the  purpose  of  ascertaining  what  use  is 
being  made  by  the  owners  of  or  consumers  of  water  from 
said  ditches;  and  if  at  any  time  he  shall  ascertain  that  the 
owner  or  owners  of  any  ditch  drawing  water  from  the  natural 
streams  furnishing  water  to  his  district  shall  be  permitting 
any  of  the  waters  flowing  in  such  ditch  to  go  to  waste,  or  to 
be  wastefully  or  extravagantly  or  wrongfully  used  by  its 
water  consumers,  or  put  to  any  other  use  than  that  to  which 
it  is  entitled  to  be  used  in  the  order  of  priority,  at  such  times 

12  Farmers'  Independent  Ditch  Co.  v.  Maxwell,  4  Colo.  App.  477, 
36  Pac.  556.  It  may  be  appropriately  noted  in  this  connection  that 
an  early  Montana  act,  conferring  power  on  water  commissioners 
to  apportion  water  for  irrigation,  was  held  unconstitutional  as  con- 
ferring judicial  power.  Thorp  v.  Woolman,  1  Mont.  168. 

(239) 


§   121  LAW  OP  IRRIGATION.  [Ch.  12 

as  the  same  is  being  needed  by  other  appropriators,  it  shall 
be  the  duty  of  such  water  commissioner  to  immediately  shut 
off  the  supply  of  water  in  such  ditch  to  such  an  extent  as  in 
Ms  judgment  was  wasted,  or  extravagantly,  wastefully  br 
wrongfully  used."  Failure  to  perform  the  duties  here  im- 
posed is  made  a  misdemeanor. 

The  commissioner  is  required,  "after  being  called  iipon  to 
•distribute  water,  to  devote  his  entire  time  to  the  discharge  of 
his  duties  when  such  duties  are  required,  so  long  as  the  neces- 
sities of  irrigation  in  his  district  shall  require ;  and  it  is  made 
his  duty  to  be  actively  employed  on  the  line  of  the  stream  or 
streams  in  his  water  district,  supervising  and  directing  the 
putting  in  of  headgates,  waste  gates,  keeping  the  stream  clear 
•of  unnecessary  dams  or  other  obstructions,  and  such  other 
duties  as  pertain  to  a  guard  of  the  public  streams  in  his  water 
district ;  and  for  willful  neglect  of  his  duty,  he  shall  be  liable 
to  fifty  dollars  fine,  with  costs  of  suit."  The  "water  com- 
missioners shall  not  begin  their  work  until  they  shall  be  called 
on  by  two  or  more  owners  or  managers,  or  persons  controlling 
ditches  in  their  several  districts,  by  application  in  writing, 
stating  that  there  is  necessity  for  their  action ;  and  they  shall 
not  continue  performing  services  after  the  necessity  therefor 
shall  cease." 

Water  commissioners,  in  the  discharge  of  their  duties,  are 
invested  with  the  powers  of  constables,  and  may  arrest  any 
person  violating  their  orders  relative  to  the  opening  or  shut- 
ting down  of  headgates,  or  the  using  of  water  for  irrigation 
purposes.13 

is  As  to  water  commissioners,  see  Mills'.  Ann.  St.  §§  2291,  2381- 
2392;  3  Mills'  Ann.  St.  §§  2384a,  2384b,  2388a.  Under  section  2387, 
-each  county  in  which  a  water  district  lies  is  liable  for  an  equal  part 
(240) 


Ch»  12]  PUBLIC  CONTROL  OF  IRRIGATION.  §    121 

It  is  provided  that  any  person  having  charge  of  the  distri- 
bution of  water  who  shall  receive  a  bribe  to  influence  him  to 
distribute  the  water  dishonestly,  and  any  person  who  shall 
give  or  offer  such  bribe,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  subject  to  fine.14 

Provision  is  made  for  the  prorating  of  water  in  times  of 
scarcity  among  all  the  consumers  of  water  from  the  same 
ditch  or  reservoir,  according  to  the  amount  to  which  each  is 
entitled,  so  that  each  shall  suffer  from  the  deficiency  in  pro- 
portion to  the  amount  of  water  which  he  would  have  received 
had  no  such  deficiency  occurred.15  By  the  construction 
placed  upon  this  statute,  it  should  be  so  limited  in  its  opera- 
tion as  not  to  conflict  with  the  priority  rule.10 

Several  statutes  have  been  passed  in  Colorado  providing 
for  the  construction  of  state  canals17  and  reservoirs18  for 
irrigation  purposes,  to  be  constructed,  owned  and  controlled 
by  the  state.  Such  canals  and  reservoirs  are  internal  im- 
provements, within  the  meaning  of  the  acts  of  congress  pro- 
viding that  a  certain  portion  of  the  proceeds  of  the  sale  of 
public  lands  lying  within  the  state  shall  be  paid  to  the  state 
for  the  purpose  of  making  such  internal  improvements  within 

of  the  commissioners'  compensation.  Board  County  Com'rs  Park 
Co.  v.  Locke,  2  Colo.  App.  508,  31  Pac.  351.  See,  also,  Board  County 
Com'rs  Pueblo  Co.  v.  Gould,  6  Colo.  App.  44,  39  Pac.  895. 

i*  Mills'  Ann.  St.  §  2398. 

is  Mills'   Ann.    St.    §    2267. 

IB  Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth,  13 
Colo.  Ill,  21  Pac.  1028;  Nichols  v.  Mclntosh,  19  Colo.  22,  34  Pac. 
278;  Larimer  &  Weld  Irr.  Co.  v.  Wyatt,  23  Colo.  480,  48  Pac.  528. 
See,  also,  Coffin  v.  Left  Hand  Ditch  Co.,  6  Colo.  443. 

IT  Mills'  Ann.  St.  §§  2478-2495;  3  Mills'  Ann.  St.  §§  2489a-2495m. 
In  re  Canal  Certificates,  19  Colo.  63,  34  Pac.  274. 

is  Mills'   Ann.  ' St.    §§    2470-2477;    3    Mills'    Ann.    St.    2495n-2495h2. 

(241) 


§   122  LAW  OF  IRRIGATION.  [Oh.  12 

the  state  as  the  legislature  may  direct,19  but  the  internal  im- 
provement fund  can  be  made  available  for  the  construction 
of  canals  and  reservoirs  only  by  an  express  appropriation.20 
Until  otherwise  provided  by  law,  the  board  of  land  commis- 
sioners is  directed  to  regulate  the  distribution  of  water  from 
state  canals  and  reservoirs  under  such  rules  and  regulations 
as  such  board  shall  deem  to  be  for  the  best  interests  of  the 
state,  and  to  charge  and  collect  rental  for  the  carriage  of 
water  therein.21 

§    122.    In  Wyoming. 

The  constitution  of  Wyoming  declares  that  the  natural 
waters  of  the  state  are  the  property  of  the  state,22  and  that 
the  control  thereof  is  in  the  state,  which,  in  providing  for  the 
use  of  water,  shall  equally  guard  all  the  various  interests  in- 
volved.23 Provision  is  made  for  a  board  of  control,  the  divi- 
sion of  the  state  into  four  water  divisions,  the  appointment  of 

10  In  re  Senate  Resolution,  12  Colo.  285,  21  Pac.  483;  In  re 
Senate  Resolution,  12  Colo.  287,  21  Pac.  484;  In  re  Canal  Certifi- 
cates, 19  Colo.  63,  34  Pac.  274. 

20  in  re  Canal  Certificates,  19  Colo.  63,  34  Pac.  274.     In  this  case, 
it  was  held  that  the  act  of  1893,  providing  for  the  construction  of 
state  canal  No.  1,  is  unconstitutional  in  so  far  as  it  authorizes  the 
acceptance  of  certificates  of  indebtedness  issued  for  the  construc- 
tion of  the  canal  in  payment  for  lands  purchased  from  the  state. 
But  such  certificates  may  be  received,  as  provided  by  the  act,  in 
payment  of  charges  for  the  carriage  of  water  in   such  canal,   or 
for  perpetual  water  rights  thereunder. 

21  3  Mills'  Ann.  St.  §  3657a. 

22  Const,  art.  8,  §  1.     This  declaration  of  the  constitution  is  not 
unconstitutional,  as  impairing  the  vested  rights  of  persons  who  had 
appropriated  water  prior  to  the  adoption  of  the  constitution,  since 
such  persons  never  had  any  title  to  the  water  in  its  natural  chan- 
nels     Farm  Inv.  Co.  v.  Carpenter  (Wyo.,  1900)   Ci  Pac.  258. 

23  Const,  art.  2,  §  31. 

(242) 


Ch.  12J  PUBLIC  CONTROL  OF  IRRIGATION.  § 

division  superintendents,  and  of  a  state  engineer  with  general 
supervision  of  the  waters  of  the  state,  and  of  the  officers  con- 
nected with  its  distribution.24 

Pursuant  to  the  constitutional  requirements,  the  first  state 
legislature,  by  an  act  entitled  "An  act  providing  for  the 
supervision  and  use  of  the  waters  of  the  state,"  approved  De- 
cember 22,  1890,  provided  a  system  of  state  control  of  the 
use  of  water.  Prior  to  this  act,  the  irrigation  laws  of  Wy- 
oming were  similar  to  those  of  Colorado,  though  less  com- 
plete. Some  features  of  the  old  system  have  been  retained,  but 
many  changes  have  been  made,  and  new  features  introduced. 
The  act  of  1890  has  been  supplemented  by  several  later 
statutes. 

The  leading  features  of  the  system  are  the  creation  of  a 
board  of  control,  consisting  of  the  state  engineer  and  the 
superintendents  of  the  four  water  divisions,  the  division  of 
the  state  into  water  divisions  and  districts,  and  the  provisions 
for  the  appointment  of  water  superintendents  and  commis- 
sioners. 

The  board  of  control  has,  under  the  regulations  prescribed 
by  law,  the  supervision  of  the  waters  of  the  state,  and  their 
appropriation,  distribution  and  diversion,  and  of  the  various 
officers  connected  therewith ;  its  decisions  being  subject  to 
review  by  the  courts.25  The  board  has  an  office  with  the 
state  engineer  at  the  capital  at  Cheyenne,  and  holds  two 
meetings  each  year  for  the  transaction  of  such  business  as 
may  come  before  it.  The  first  meeting  begins  on  the  second 
Wednesday  in  March,  and  the  second  on  the  third  Wednesday 
in  October.  The  state  engineer  is  ex  officio  president  of  the 

24  Const,  art.  8,  §§2,  4,  5. 

(243) 


§   122  LAW  OF  IRRIGATION.  [Ch.  12 

board,  and  has  a  right  to  vote  on  all  questions.  A  majority 
of  the  board  constitutes  a  quorum  to  transact  business.  The 
superintendent  of  water  division  number  one  is  secretary 
of  the  board,  and  is  required  to  keep  a  record  of  its  trans- 
actions, and  of  the  special  land  commission,  and  to  certify 
under  seal  all  certificates  of  appropriation  of  water  made  in 
accordance  with  law.26 

The  state  of  Wyoming  is  divided  by  statute  into  four 
water  divisions,  designated  by  the  statute.  The  statute  pro- 
vides for  one  superintendent  of  each  of  these  divisions,  to  be 
appointed  by  the  governor,  with  the  consent  of  the  senate, 
who  shall  hold  office  for  four  years,  or  until  his  successor  is 
appointed  and  shall  have  qualified,  and  who  shall  reside  in 
the  water  district  for  which  he  is  apppointed. 

The  duties  of  the  division  superintendents  and  of  the  water 
commissioners  are  substantially  the  same  as  those  of  the  cor- 
responding officers  in  Colorado.  Thus,  the  superintendent  has 
control  over  the  water  commissioners  of  the  several  districts 
within  his  division,  and  of  the  distribution  of  water  in  such 
division,  under  the  general  supervision  of  the  state  engineer, 
and  is  required  to  perform  such  other  functions  as  may  be 
assigned  him  by  the  state  engineer,  and  also  such  duties  as 
may  devolve  upon  him  as  a  member  of  the  board  of  control. 
In  the  distribution  of  water,  the  superintendent  is  to  be 
governed  by  the  statutes  in  force,  but  for  the  better  discharge 
of  his  duties,  he  is  authorized  to  make  such  other  regulations 
to  secure  the  equal  and  fair  distribution  of  water  in  ac- 
cordance with  the  rights  of  priority  of  appropriation  as  may, 

ae  Rev.  St.  1899,   §§  857,  858.     As  to  the  duties  of  the  board  in 
respect  to  the  adjudication  of  priorities,  see  Rev.  St.  1899,  §§  859- 
887,  and  ante,  §  106. 
(244) 


Ch.  12]  PUBLIC  CONTROL.  OF  IRRIGATION.  §   122 

in  his  judgment,  be  needed  in  his  division,  provided  such 
regulations  shall  not  be  in  violation  of  law,  but  shall  be  merely 
supplemental  to  and  necessary  to  enforce  the  laws.  An  ap- 
peal may  be  taken  from  such  orders  or  regulations  by  any 
person  deeming  himself  injured  or  discriminated  against 
thereby  to  the  state  engineer,  by  filing  with  the  engineer  a 
copy  of  the  order  or  regulation  complained  of,  and  a  state- 
ment of  the  manner  in  which  the  same  injuriously  affects  the 
petitioner's  interest.  The  engineer,  after  due  notice,  shall 
hear  the  testimony  offered  by  the  petitioner,  and  through  the 
superintendent  may  suspend,  amend  or  confirm  the  order 
complained  of.  All  water  commissioners  are  required  to 
make  reports  to  the  superintendent  of  their  division  as  often 
as  deemed  necessary  by  the  superintendent,  such  reports  to 
contain  certain  information  as  to  the  water  supply,  ditches, 
etc.,  in  each  district,  as  prescribed  by  the  statute.  These  re- 
ports are  to  be  filed  and  preserved  by  the  superintendent,  and 
are  to  be  used  by  him  as  the  basis  of  his  orders  respecting  the 
distribution  of  water.  They  are  to  be  filed  and  kept  in  the 
office  of  the  state  engineer.27 

The  board  of  control  is  required  by  statute  to  divide  the 
state  into  water  districts,  to  be  so  constituted  as  to  secure 
the  best  protection  to  the  claimants  for  water,  and  the  most 
economical  supervision  by  the  state;  such  districts  not  to  be 
created  until  a  necessity  therefor  shall  arise;  but  from  time 
to  time,  as  the  appropriations  and  priorities  thereof  from  the 
streams  of  the  state  shall  be  adjudicated. 

A  water  commissioner,  who  must  be  a  resident  of  the  dis- 

27  As  to  water  divisions  and  superintendents,  see  Rev.  St.  1899, 
§§  848-856. 

(245) 


§   122  LAW   OF   IRRIGATION.  [Ch.  12 

trict,  is  to  be  appointed  for  each  district,  the  appointment  to 
be  made  by  the  governor  from  persons  recommended  by  the 
superintendent  of  the  water  division  in  which  the  district  is 
situated.  The  commissioners  hold  office  two  years,  and  the 
governor  has  power  to  fill  vacancies  or  remove  any  commis- 
sioner for  neglect  of  duty. 

It  is  the  duty  of  the  water  commissioner  "to  divide  the 
water  in  the  natural  stream  or  streams  of  his  district  among 
the  several  ditches  taking  water  therefrom,  according  to  the 
prior  rights  of  each,  respectively,  in  whole  or  in  part,  and 
to  shut  and  fasten,  or  cause  to  be  shut  and  fastened,  under 
the  direction  of  the  superintendent  of  his  water  division,  the 
headgates  of  ditches  heading  in  any  of  the  natural  streams 
of  the  district  when,  in  times  of  scarcity  of  water,  it  is  neces- 
sary to  do  so  by  reason  of  the  priority  of  rights  of  others  tak- 
ing water  from  the  same  stream,  or  its  tributaries."  The 
commissioners  "shall  so  divide,  regulate  and  control  the  use 
of  the  water  of  all  streams  within  their  respective  districts  in 
such  manner,  as  near  as  may  be,  as  will  prevent  unnecessary 
waste  of  water,  and  to  that  end  such  commissioner  shall  so 
shut  and  fasten  the  headgate  or  gates  of  all  ditches  so  that 
no  more  water  will  flow  into  said  ditch  than  is  actually  re- 
quired and  will  be  used  for  the  uses  and  purposes  for  which 
such  water  was  appropriated,  and  any  person  who  may  be 
injured  by  the  action  of  any  water  commissioner,  or  by  his- 
failure  to  act  pursuant  to"  the  statute,  "may  resort  to  any 
court  of  competent  jurisdiction  for  such  relief  as  he  may  be 
entitled  to."  The  commissioners  shall  not  begin  work  until 
called  upon  by  two  or  more  ditch  owners,  controllers  or  man- 
agers, by  application  in  writing,  stating  that  there  is  a  neces- 
sity for  the  use  of  water,  and  they  shall  not  continue  per- 
(246) 


Ch.  12J  PUBLIC  CONTROL  OF  IRRIGATION.  §   122 

formiiig  services  after  the  necessity  therefor  shall  cease.28 

An  important  feature  of  the  Wyoming  system  is  found  in 
the  provisions  governing  the  procedure  relative  to  the  appro- 
priation of  water.  It  is  provided  substantially  that  all  per- 
sons, associations  or  corporations  intending  to  appropriate 
water  are  required  to  first  make  an  application  to  the  state 
engineer  for  .a  permit  to  make  such  appropriation.  The  ap- 
plication must  set  forth  the  name  and  address  of  the  ap- 
plicant, tile  source  of  the  water  supply,  the  nature  of  the  pro- 
posed use,  the  location  and  description  of  the  proposed  ditch, 
canal  or  other  work,  and  the  time  of  beginning  and  complet- 
ing the  work,  and  of  the  application  of  the  water  to  the  pro- 
posed use.  It  is  the  duty  of  the  engineer  to  approve  all  appli- 
cations, made  in  proper  form,  which  contemplate  the  appli- 
cation of  the  water  to  a  beneficial  use,  where  the  proposed 
use  does  not  tend  to  impair  the  value  of  existing  rights,  or  be 
otherwise  detrimental  to  the  public  welfare.  But  where  there 
is  no  unappropriated  water  in  the  proposed  source  of  supply, 
or  where  the  proposed  use  conflicts  with  existing  rights,  or 
threatens  to  prove  detrimental  to  the  public  interests,  the  en- 
gineer shall  reject  the  application,  and  refuse  to  issue  the 
permit  asked  for.  An  appeal  is  allowed  from  an  adverse  de- 
cision of  the  engineer  to  the  board  of  control,  and  from  the 
decision  of  the  board  to  the  district  court  of  the  proper  coun- 
ty. Maps  and  plans  of  the  proposed  works  are  required  to 
be  filed  with  the  engineer.  Upon  the  completion  of  an  ap- 
propriation in  accordance  with  the  application  and  indorse- 
ment thereon  of  the  state  engineer,  the  board  of  control  is 
required  to  send  a  certificate  of  appropriation  to  the  county 

23  As  to  water  districts  and  commissioners,  see  Rev.  St.  1899,  §§ 
888-894. 

(247) 


§   123  LAW  OF  IRRIGATION.  [Ch.  12 

clerk  of  the  county  in  which  the  appropriation  shall  have 
been  made,  and  such  clerk  shall  record  the  certificate,  and 
transmit  it  to  the  appropriator.  The  priority  of  such  appro- 
priation shall  date  from  the  filing  of  the  application  in  the 
engineer's  office.20 

X    123.    In  Other  States. 

In  several  other  states  besides  Colorado  and  Wyoming, 
systems  of  state  or  public  control  of  irrigation,  more  or  less 
complete,  are  provided  by  statute.  The  more  important  ex- 
amples of  such  systems  are  based  upon  that  of  Colorado  or 
of  Wyoming,  already  considered.  A  brief  statement  of  the 
system  of  each  state  will  therefore  be  sufficient  for  the  pur- 
poses of  this  work. 

In  Nebraska  the  regulation  of  irrigation  is  committed  to  a 
state  board  of  irrigation,  composed  of  the  governor,  attorney 
general  and  commissioner  of  public  lands  and  buildings.  The 
system  of  control  adopted  is  substantially  the  same  as  that  of 
Wyoming.30 

In  Washington,  each  county  of  the  state  is  constituted  an 
irrigation  district,  and  for  each  district  a  water  commissioner 
may  be  appointed  by  the  county  commissioners.  The  duties 
of  the  water  commissioner  are  substantially  the  same  as  those 
of  such  officers  in  Colorado,  the  statutes  of  which  state  on 
the  subject  having  been  adopted  with  but  little  change.31 

2»  Rev.  St.  1899,  §§  917-929. 

soComp.  St.  1899,  §  5444  et  seq. 

si  Bal.  Code,  §§  4125-4-131.  The  statutes  also  provide  for  the 
appointment  of  commissioners  by  the  judge  of  the  superior  court 
of  the  county,  whose  duties  are  to  allot  and  apportion  the  water 
in  certain  cases.  Bal.  Code,  §§  4105,  4108,  4111.  These  provisions, 
so  far  as  the  appointment  of  the  commissioner  is  concerned,  seem 
(248) 


Ch.  12]  PUBLIC  CONTROL  OF  IRRIGATION.  §    123 

In  Nevada,  by  an  act  approved  March  16,  1899,  provision 
is  made  for  the  creation  of  county  boards  of  water  commis- 
sioners, composed  of  the  county  commissioners  and  the 
county  surveyor  of  each  county.  It  is  left  to  the  dis- 
cretion of  the  several  boards  of  county  commissioners  wheth- 
er the  county  shall  avail  itself  of  the  provisions  of  the 
act  as  to  forming  a  board  of  water  commissioners.  The 
duties  and  powers  of  the  boards  of  water  commissioners  are 
similar  to  those  of  the  Wyoming  board  of  control.  Persons 
desiring  to  appropriate  water  are  to  make  application  to  the 
board  of  commissioners,  who  are  to  pass  upon  such  applica- 
tions.32 

In  Idaho,  a  recent  statute  proyides  that  in  all  cases  where 
the  waters  of  any  stream  used  for  irrigation  or  other  pur- 
poses have  been  adjudicated  and  allotted  by  a  decree  of  the 
district  court,  such  court,  or  the  judge  thereof,  shall  appoint 
a  water  master  of  the  stream  or  streams  included  in  the  de- 
cree to  distribute  the  water  according  to  the  provisions  of  the 
decree.  The  powers  and  duties  of  the  water  masters  are  pre- 
scribed in  detail  by  the  statute.33  Another  statute  provides 
that  the  boards  of  county  commissioners  of  the  respective 
counties  shall  constitute  boards  of  water  commissioners  with 
power  to  enforce  the  statutes  providing  for  the  appropria- 
tion and  distribution  of  water.34 

In  California,  several    early    statutes    provided  for  water 

to  be  based  on  Mills'  Ann.  St.  Colo.  §  2259,  of  which  section  4105, 
supra,  is  substantially  a  copy.  This  section,  however,  is  obsolete 
in  Colorado. 

32  Comp.  Laws  1900,  §§  361-373. 

33  Laws   1899,   p.   369. 

34  Laws  1899,  p.  386,  §  34. 

(249) 


§    123  LAW  OF  IRRIGATION.  [Ch.  12 

commissioners  for  particular  counties.35  It  has  been  held 
that  such  water  commissioners  are  merely  agents  selected  for 
the  public  convenience,  to  regulate  the  distribution  of  water 
according  to  the  rights  of  the  parties  in  interest ;  and  their 
action  in  distributing  water  does  not  conclude  interested  par- 
ties from  obtaining  redress  in  the  courts,  if  other  persons 
have  been  given  more  than  their  just  proportion  of  water.36 

In  Arizona  and  New  Mexico,  a  system  of  public  control  has 
been  adopted  which  differs  considerably  from  that  obtaining 
elsewhere  in  the  arid  region.  The  system  is  borrowed  from 
the  Mexican  law.37  The  statutes  provide  for  the  construc- 
tion and  control  of  public  acequias,  or  irrigating  canals,  owned 
by  a  number  of  persons  taking  water  therefrom.  These 
acequias  are  constructed  and  kept  in  repair  by  public  labor,, 
and  are  controlled  by  officers  elected  by  the  people  inter- 
ested.38 

The  failure  of  the  owners  of  an  acequia  to  elect  a  "mayor- 
domo,"  and  work  the  acequia,  under  the  New  Mexico  law 
regulating  acequias,  will  not  justify  persons  having  no  in- 
terest in  such  acequia  in  wrongfully  appropriating  water 
flowing  through  it.39 

In  Utah  a  system  of  municipal  control  obtains.  City  coun- 
cils are  given  power  "to  control  the  water  and  watercourses 
leading  to  the  city,  and  to  regulate  and  control  the  water- 

35  See  Daley  v.  Cox,  48  Gal.  127;  Knox  v.  Board  Sup'rs,  Los  An- 
geles Co.  58  Gal.  59;  Charnock  v.  Rose,  70  Gal.  189,  11  Pac.  625; 
Lakeside  Ditch  Co.  v.  Crane,  80  Cal.  181,  22  Pac.  76. 

se  Daley  v.  Cox,  48  Cal.  127. 

3"  As  to  the  Mexican  law  of  irrigation,  see  Lux  v.  Haggin,  69  Cal. 
255,  10  Pac.  674. 

ss  Rev.  St.  Ariz.  1887,  §§  3199-3226;  Comp.  Laws  N.  M.  1897,  §§  1-51. 
For  text  or  substance  of  these  sections,  see  Appendix. 

3»  De  Baca  v.  Pueblo  of  Santo  Domingo  (N.  M.,  1900)  60  Pac.  73. 
(250) 


(Jh.  12]  PUBLIC  CONTROL  OF  IRRIGATION.  §   123 

courses  and  mill  privileges  within  the  city ;  provided,  that  the 
control  shall  not  be  exercised  to  the  injury  of  any  right  al- 
ready acquired  by  actual  owners;"  and  also  "to  construct, 
purchase  or  lease  and  maintain  canals,  ditches  and  reservoirs ; 
and  to  purchase  or  lease  springs,  streams  or  sources  of  water 
supply  for  the  purpose  of  providing  water  for  irrigation,  do- 
mestic or  other  purposes;  and,  if  necessary  to  secure  said 
sources  of  water  supply,  to  purchase  or  lease  the  land  upon 
which  said  water  has  been  appropriated  or  applied."40 
Special  or  local  taxes  may  be  levied  by  the  city  council  for  the 
above  purposes.41  A  municipality  cannot,  by  virtue  of  these 
provisions,  acquire  a  right  to  water  to  which  others  have  ac- 
quired a  paramount  right  and  ownership  prior  to  the  incor- 
poration of  the  municipality,  without  the  acquiescence  of  such 
owners.42  Independently  of  these  statutes,  a  city  may  take 
possession  and  control  of  the  waters  of  a  stream,  and  regulate 
the  distribution  thereof,  with  the  consent  of  the  original  own- 
ers and  appropriators.43 

40  Rev.  St.  1898,  pp.  17,  18,  §  206. 

41  Rev.  St.  1898,  §  279. 

42  Fisher  v.  Bountiful  City  (Utah,  1899)    59  Pac.  520. 

43  See  City  of  Springville  v.  Fullmer,  7   Utah,  450,  27  Pac.  577 ; 
Holman  v.  Pleasant  Grove  City,  8  Utah,  78,  30  Pac.  72. 

(251) 


§   124  LAW  OF  IRRIGATION.  [Ch.  13 


CHAPTER  XIII. 

IRRIGATION  COMPANIES. 

§  124.  Generally. 

125.  Acquisition  of  Water  Rights — Generally. 

126.  Same — Appropriation  by  Irrigation  Companies. 

127.  Same — Condemnation  of  Water  Rights. 

128.  Acquisition  of  Right  of  Way. 

129.  By-Laws  and  Regulations. 

130.  Irrigation  Companies  Public  Carriers  of  Water. 

131.  Duty  to  Furnish  Water  to  Consumers. 

132.  Contracts  for  Water  Rights. 

133.  Rates  for  Furnishing  Water. 

134.  Transfer  of  Stock  in  Irrigation  Companies. 

g    124.    Generally. 

With  the  late  rapid  development  and  expansion  of  agricul- 
tural interests  in  the  arid  region,  and  the  consequent  greatly 
increased  need  of  irrigation,  the  supplying  of  water  to  farm- 
ing lands  has  become  in  many  parts  of  the  country  too  great 
an  undertaking  for  individual  farmers  acting  independently, 
and  the  general  work  of  irrigation  is  now  very  largely  per- 
formed by  irrigation  companies  organized  for  the  purpose  of 
conducting  the  water  from  the  streams,  and  distributing  it 
to  the  farmers  along  the  line  of  their  canals.  These  canals 
are  often  many  miles  in  length,  costing  in  some  instances 
hundreds  of  thousands  of  dollars,  and  by  distributing  the 
water  over  large  areas  of  territory,  often  remote  from  the 
source  of  supply,  they  render  available  for  agricultural  pur- 
poses great  tracts  of  land  which  could  otherwise  be  cultivated 
(252) 


Ch.  13]  IRRIGATION  COMPANIES.  §    124 

only  at  very  great  or  even  at  prohibitive  expense.1  In  most  or 
all  of  -the  arid  states,  statutes  have  been  passed  providing  for 
the  organization  of  these  companies,  defining  their  rights,  and 
regulating  the  relations  between  the  companies  and  consumers 
under  their  canals.2 

These  organizations  may  be  divided  into  two  general  class- 
es,— private  companies,  usually  incorporated  and  commonly 
known  as  "irrigation  companies"  or  "ditch  companies,"  and 
public  corporations,  known  as  "irrigation  districts."  The 
subject  of  irrigation  districts  will  be  treated  in  the  next  chap- 
ter, the  present  chapter  being  devoted  to  a  discussion  of  pri- 
vate irrigation  companies  only. 

Private  irrigation  companies  are  organized  under  the  stat- 
utes, according  to  the  same  general  rules  as  private  corpo- 
rations generally,  and  present  no  features  in  this  respect  not 
common  to  all  corporations.  Their  rights,  powers,  duties  and 
liabilities  as  defined  by  the  legislatures  and  courts,  so  far  as 
peculiar  to  these  corporations,  are  such  as  arise  from  the 
special  purpose  of  their  organization.  Private  ditch  com- 
panies may  be  organized  for  the  purpose  of  conveying  water 
for  hire  to  consumers  generally,  or  they  may  be  associations 
formed  by  consumers  for  the  purpose  of  conveying  water 
solely  for  the  irrigation  of  their  own  lands,  and  not  for  hire. 
These  associations,  sometimes  called  "mutual  ditch  com- 
panies," may  or  may  not  be  incorporated,  arid  the  respective 
interests  of  the  members  may  or  may  not  be  represented  by 
shares  of  stock.3  When  incorporated,  the  relation  between 

1  See  Golden  Canal  Co.  v.  Bright,  8  Colo.  144,  6  Pac.  142;  Wheeler 
v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487. 

2  See  statutes  in  Appendix. 

s  Per  Helm,  C.J.,  in  Combs  v.  Agricultural  Ditch  Co.,  17  Colo. 
146,  28  Pac.  966. 

(253) 


§125  LAW  OF  IRRIGATION.  [Ch.  13 

the  ditch  company  and  its  members,  as  in  the  case  of  other 
corporations,  is  one  of  contract,  from  which  contract  arises  a 
trust  with  which  the  corporation  is  charged  to  conduct  the 
•common  business  in  the  interests  of  the  shareholders.4  Each 
share  of  stock  in  respect  to  the  benefits  to  which  it  entitles  its 
holder  is  equal  to  every  other  share,  and  the  interest  of  each 
stockholder  in  the  water  carried  is  in  exact  proportion  to  the 
amount  of  his  stock;  and  the  duty  assumed  by  the  company 
is  to  use  reasonable  care  and  diligence  in  conveying  the  water, 
keeping  the  means  of  conveyance  in  repair  and  making  a 
ratable  distribution.5  The  stock  in  such  companies  may  be 
assessed  for  expenses  of  maintenance,  etc.,  and  may  be  sold 
for  the  nonpayment  of  assessments  levied  thereon.6 

An  irrigation  company,  like  other  corporations,  is  a  trustee 
for  its  stockholders  and  consumers,  and  is  bound  to  protect 
their  interests,  and  may  maintain  an  action  for  this  purpose.7 

>?    125.    Acquisition  of  Water  Rights— Generally, 

The  statutes  providing  for  the  organization  of  irrigation 
•companies  confer  upon  such  companies,  either  expressly  or 
by  necessary  implication,  the  power  to  acquire  water  rights. 
It  is  to  be  observed  that  legislative  authority  to  acquire  water 

*  Supply  Ditch  Co.  v.  Elliott,  10  Colo.  327,  15  Pac.  691 ;  Rocky 
Ford  Canal,  etc.,  Co.  v.  Simpson,  5  Colo.  App.  30,  36  Pac.  638. 

'•>  Rocky  Ford  Canal,  etc.,  Co.  v.  Simpson,  5  Colo.  App.  30,  36 
Pac.  638. 

6  Hall  v.  Eagle  Rock  &  Willow  Creek  Water  Co.  (Idaho,  1897) 
51  Pac.  110. 

-Riverside  Water  Co.  v.  Sargent,  112  Cal.  230,  44  Pac.  560; 
Supply  Ditch  Co.  v.  Elliott,  10  Colo.  327,  15  Pac.  691;  Farmers' 
Independent  Ditch  Co.  v.'  Agricultural  Ditch  Co.,  22  Colo.  513,  45 
Pac.  444;  Montrose  Canal  Co.  v.  Loutsenhizer  Ditch  Co.,  23  Colo. 
233,  48  Pac.  532;  Thorpe  v.  Tenem  Ditch  Co.,  1  Wash.  566,  20 
Pac.  588. 

(254) 


Oh.  13]  IRRIGATION  COMPANIES.  §    125 

rights,  conferred  upon  an  irrigation  company  by  its  charter, 
does  not  confer  the  water  rights  themselves,  but  these  can  be 
acquired  only  in  the  manner  provided  by  law.8  A  water  right 
may  be  acquired  by  an  irrigation  company  by  appropriation, 
by  purchase  or  gift  or  by  condemnation.  In  a  limited 
sense,  also,  a  water  right  may  be  acquired  by  legislative  grant. 
The  acquisition  of  water  rights  by  appropriation  and  con- 
demnation will  be  discussed  in  subsequent  sections  of  this 
chapter.9  The  acquisition  by  purchase  or  gift  calls  for  no 
particular  treatment  in  this  connection,  for  the  fact  that  a 
corporation  is  a  party  to  the  transfer  introduces  no  new 
feature  into  the  law  of  the  transfer  of  water  rights,  already 
fully  treated  in  this  work.10 

With  reference  to  the  acquisition  of  water  rights  by  grant 
of  the  legislature,  it  is  plain  that  the  legislature  cannot  grant 
to  a  corporation  the  exclusive  right  to  the  water  of  a  stream, 
so  as  to  interfere  with  private  vested  rights.11  And  it  has 
been  held  that  an  act  granting  to  canal  and  other  companies 
the  free  use  of  the  waters  and  streams  of  the  state  applies 
only  to  streams  upon  the  public  lands,  for  the  legislature  has 
no  power  to  take  away  or  impair  the  vested  rights  of  riparian 
owners  without  providing  for  the  payment  of  a  just  compen- 

s  Mud  Creek  Irr.,  etc.,  Co.  v.  Vivian,  74  Tex.  170,  11  S.  W.  1078. 
o  See  post,  §§  126,  127. 

10  See  ante,  c.  7.     One  irrigation  company  may  grant  to  another 
the  right  to  take  water  from  its  canal.     North 'Point  Consol.  Irr. 
Co.  v.  Utah  &  S.  L.  Canal  Co.,  16  Utah,  246,  52  Pac.  168.     Where 
an  irrigation  company  succeeds  to  the  rights  of  a  former  company, 
it  takes  the  property  of  the  latter  subject  to  any  rights  of  an  in- 
dividual in  the  old  company's  water  right  not  surrendered  by  him 
to  the  new  company.     Beck  v.   Pasadena  Lake  Vineyard  Land   & 
Water  Co.    (Gal.,  1899))    59   Pac.  387. 

11  Munroe  v.  Ivie,  2  Utah,  535. 

(255) 


§   126  LAW  OP  IRRIGATION.  [Ch.  13 

sation.12  It  is  submitted  that  such  an  act,  so  far  as  it  confers 
the  right  to  use  the  water  for  irrigation  or  other  purposes,  is 
Superfluous,  for  such  right  may  be  acquired  by  appropriation 
under  the  general  laws  governing  the  appropriation  of  water. 
Again,  as  stated  above,  a  legislative  grant  is  not  so  much  a 
grant  of  the  water  right  itself  as  of  the  privilege  of  acquiring 
such  right. 

The  power  of  a  ditch  company,  under  its  certificate  of  in- 
corporation, to  purchase  water  rights,  can  be  questioned  only 
by  the  state.13 

8    126.    Same— Appropriation  by  Irrigation  Companies. 

An  irrigation  company  may  acquire  water  rights  by  appro- 
priation in  the  same  manner  as  an  individual,  and  subject  to 
the  same  general  laws.  The  mere  fact  that  the  appropriation 
is  made  by  a  company  instead  of  by  an  individual  does  not 
change  any  of  the  rules  of  law  as  to  what  water  may  be  ap- 
propriated, or  what  constitutes  an  appropriation.  Individ- 
uals may  organize  a  company,  either  by  or  without  incorpora- 
tion, for  the  construction  of  an  irrigating  ditch,  and  may  by 
such  means  divert  the  unappropriated  waters  of  a  natural 
stream.  By  the  construction  of  the  ditch  and  the  diversion 
of  the  water  they  may  acquire  a  prior  right  to  the  water  di- 
verted, provided  they  apply  the  same  to  beneficial  use  within 
a  reasonable  time  after  diversion.  But  they  cannot  postpone 
the  exercise  of  such  right  for  an  unreasonable  time,  so  as  to 
prevent  others  from  acquiring  a  right  to  the  water;  nor  can 
they  acquire  a  right  to  dispose  of  the  water  contrary  to  the 

*2  Mud  Creek  Irr.,  etc.,  Co.  v.  Vivian,  74  Tex.  170,  11  S.  W.  1078. 
is  Water  Supply  &  Storage  Co.  v.  Tenney,  24  Colo.  344,  51  Pac. 
505. 

(256) 


Ch.  13]  IRRIGATION  COMPANIES.  §   126 

priority  rule  where  this  obtains.  With  irrigation  com- 
panies, as  with  individuals,  the  mere  diversion  of  water  is  not 
an  appropriation  of  it;  there  must  be  an  application  of  the 
water  to  beneficial  use  within  a  reasonable  time,  or  the  diver- 
sion is  unlawful.  The  very  birth  and  life  of  a  prior  right 
to  the  use  of  water  is  actual  user.14  In  the  case  of  an  ap- 
propriation by  an  individual,  the  diversion  and  application 
of  the  water  to  beneficial  use  will,  of  course,  both  ordinarily 
be  made  by  the  same  person,  while,  in  the  present  case,  the 
water  will  be  diverted  by  the  company,  and,  except  in  the 
case  of  mutual  companies,  or  where  the  company  irrigates  its 
own  lands,  the  application  to  beneficial  use  will  be  made  by  an 
individual,  who  may  not  sustain  any  other  relationship  to  the 
company  than  that  of  a  consumer  under  its  ditch.  In  other 
words,  the  appropriation  is  begun  by  one  person, — the  com- 
pany,— and  completed  by  another, — the  consumer.  Both  the 
actual  diversion  and  the  application  to  beneficial  use  are  es- 
sential to  the  completeness  and  validity  of  the  appropriation. 
But  it  is  not  necessary  that  the  appropriation  should  be 
wholly  accomplished  by  one  person,  but  it  may  be  effected 
by  several  persons  acting  in  conjunction.  If  one  person  di- 
verts water  without  making  any  use  of  it  either  personally 
or  through  others,  and  a  stranger  takes  the  water  from  the 
ditch,  and  applies  it  to  his  lands  without  having  had  anything 

i*  Wheeler  v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487; 
Combs  v.  Agricultural  Ditch  Co.,  17  Colo.  146,  28  Pac.  966.  See 
New  Mercer  Ditch  Co.  v.  Armstrong,  21  Colo.  357,  40  Pac.  989. 
Ditch  companies  as  carriers  are  appropriators  or  quasi  appropri- 
ators  of  water,  and  acquire  certain  rights  by  priority  of  appropria- 
tion, or,  strictly  speaking,  priority  of  diversion,  their  priorities 
being  dependent  upon  their  supplying  the  water  to  actual  consum- 
ers. Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth,  13 
Colo.  Ill,  21  Pac.  1028. 

(257) 


§   126  LAW  OF  IRRIGATION.  [Ch.  13 

to  do  with  its  diversion,  either  directly  or  indirectly,  it  is 
perhaps  true  that  neither  acquires  any  valid  right  to  the 
water.  But  however  this  may  be,  there  is  clearly  such  a 
privity  between  the  ditch  company  and  the  consumer  as  to 
establish  a  sufficient  connection  between  the  diversion  and 
the  application  of  the  water  to  render  the  appropriation  com- 
plete. The  ditch  company  in  such  case  acts  merely  as  the 
agent  of  the  consumer  in  conducting  the  water  to  his  lands, 
and  acquires  in  and  of  itself  no  independent  priority,  and 
any  rights  it  may  hold  in  connection  with  the  water  diverted 
depend  for  their  continuance  upon  the  use  made  by  con- 
sumers.15 The  consumer  is  an  appropriator  from  the  nat- 

i"'  Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth,  13 
Colo.  Ill,  21  Pac.  1028.  In  this  case  Helm,  C.  J.,  said:  "The 
constitution  recognizes  priorities  only  among  those  taking  water 
from  natural  streams.  Therefore,  to  constitute  an  appropriation 
such  as  is  recognized  and  protected  by  that  instrument,  the  essen- 
tial act  of  diversion,  with  which  is  coupled  the  essential  act  of 
use,  must  have  reference  to  the  natural  stream.  But  the  consumer 
himself  [taking  water  from  a  ditch  company's  ditch]  makes  no  di- 
version from  the  natural  stream.  The  act  of  turning  water  from 
the  carrier's  canal  into  his  lateral  cannot  be  regarded  as  a  diver- 
sion, within  the  meaning  of  the  constitution,  nor  can  this  act,  of 
itself,  when  combined  with  the  use,  create  a  valid  constitutional 
appropriation.  There  is  therefore  no  escape  from  the  conclusion, 
hitherto  announced  by  this  court,  that  in  cases  like  the  present 
the  carrier's  diversion  from  the  natural  stream  must  unite  with  the 
consumer's  use  in  order  that  there  may  be  a  complete  appropriation, 
within  the  meaning  of  our  fundamental  law.  The  carrier  makes 
a  diversion  both  in  fact  and  in  law.  This  diversion  is  accomplished 
through  an  agency  (the  carrier)  recognized  by  the  constitution 
and  statutes,  and  for  purposes  expressly  named  in  both,  hence  it 
cannot  be  challenged  as  illegal.  It  would  undoubtedly  become  un- 
lawful were  the  water  diverted  not  applied  to  beneficial  uses  within 
a  reasonable  time;  but  when  thus  applied,  the  diversion  unques- 
tionably ripens  into  a  perfect  appropriation."  For  extensive  opinion 

(258) 


Oh.  13]  IRRIGATION  COMPANIES.  §   126 

ural  stream  through  the  intermediate  agency  of  the  ditch.16 
It  follows  from  the  foregoing  that  under  the  doctrine  of 
appropriation  the  ditch  company  is  not  the  proprietor  of  the 
water  diverted  by  it,17  but  is  an  intermediate  agency  existing 
for  the  purpose  of  aiding  consumers  in  the  exercise  of  their 
constitutional  rights,  as  well  as  a  private  enterprise,  prose- 
cuted for  the  benefit  of  its  owners.18  The  ownership  of  the 
water  itself,  except  perhaps  as  to  the  limited  quantity  that 
may  be  actually  flowing  in  the  consumer's  ditch  or  lateral, 
remains  in  the  public,  with  a  perpetual  right  to  its  use,  free 
of  charge,  in  the  people.19  It  follows  that  an  irrigation  com- 
pany can  charge  the  consumer  only  for  the  transportation 
of  the  water  as  a  carrier,  and  can  exact  nothing  for  the 
water  itself,  or  for  the  right  to  its  use.  In  these  it  possesses 
no  salable  interest.20  The  statements  just  made  should  be 
so  limited  as  to  apply  only  to  cases  where  the  water  is  di- 
verted by  the  company,  and  used  by  an  individual.  Of 

as  to  appropriation  by  irrigation  companies,  see  Albuquerque  Land 
&  Irr.  Co.  v.  Gutierrez  (N.  M.,  1900)  61  Pa'c.  357. 

i<5  Wyatt  v.  Larimer  &  Weld  Irr.  Co.,  18  Colo.  298,  33  Pac.  144. 
See  Wright  v.  Platte  Val.  Irr.  Co.  (Colo.  Sup.,  1900)  61  Pac.  603. 

IT  Wheeler  v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487; 
Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth,  13  Colo. 
Ill,  21  Pac.  1028;  Combs  v.  Agricultural  Ditch  Co.,  17  Colo.  146, 
28  Pac.  966;  Wyatt  v.  Larimer  &  Weld  Irr.  Co.,  18  Colo.  298,  33 
Pac.  144,  reversing  1  Colo.  App.  480,  29  Pac.  906. 

is  Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth,  13 
Colo.  Ill,  21  Pac.  1028;  Wyatt  v.  Larimer  &  Weld  Irr.  Co.,  18  Colo. 
298,  33  Pac.  144,  36  Am.  St.  Rep.  280.  See,  also,  Nevada  Ditch  Co. 
v.  Bennett,  30  Ore.  59,  45  Pac.  472. 

19  Wheeler  v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487; 
Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth,  13  Colo. 
Ill,  21   Pac.  1028. 

20  Wheeler  v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487. 

(259) 


§   127  LAW  OF  IRRIGATION.  [Ch.  13 

course,  where  the  appropriation  is  wholly  made  by  the  com- 
pany,— that  is,  where  the  company  not  only  diverts  the 
water,  but  also  uses  it  on  lands  belonging  to  it, — it  becomes 
the  owner  of  the  water  right,  and  may  sell  the  right,  just  as 
any  other  owner  may  do. 

§    127.    Same— Condemnation  of  Water  Rights. 

In  jurisdictions  in  which  the  doctrine  of  riparian  rights 
obtains,  the  statutes  in  some  cases  provide  for  the  condemna- 
tion of  the  water  rights  of  riparian  proprietors  by  irrigation 
companies  under  the  power  of  eminent  domain.  The  power 
of  the  legislature  to  authorize  the  taking  of  water  rights  in 
this  manner  cannot  be  questioned.  The  use  contemplated 
is  regarded  as  public,  and  full  provision  is  made  for  the  pay- 
ment of  due  compensation  to  the  owner  of  the  rights  thus  ac- 
quired. It  seems,  however,  that  the  power  is  one  which 
should  be  exercised  only  when  the  public  interests  impera- 
tively demand  it.21 

21  That  water  rights  may  be  condemned,  see  Lux  v.  Haggin,  69 
Cal.  255,  10  Pac.  674;  Aliso  Water  Co.  v.  Baker,  95  Gal.  268,  30 
Pac.  537. 

In  Umatilla  Irr.  Co.  v.  Barnhart,  22  Ore.  389,  30  Pac.  37,  which  was 
an  action  to  condemn  the  riparian  rights  of  the  appellants  under  the 
Oregon  act  of  1891,  the  court  said:  "The  first  section  of  the  act 
expressly  declares  that  the  use  of  the  waters  of  this  state  for  the 
purposes  specified  in  the  act  is  a  public  use,  and  the  right  to  collect 
rates  or  compensation  for  such  use  of  said  water  is  a  franchise. 
The  legislature  has  the  sole  power  to  determine  when  and  in  what 
cases  the  power  of  eminent  domain  may  be  exercised  and  private 
property  taken,  subject  only  to  two  limitations.  One  is,  that  it 
cannot  be  taken  for  private  use,  and  the  other  is  that  compensation 
must  be  made  before  it  is  taken,  unless  in  case  of  the  state.  The 
legislature  having  declared  the  use  of  water  for  the  purposes 
named  in  the  act  to  be  a  public  use,  this  court  cannot,  from  any- 

(260) 


Ch.  13]  IRRIGATION  COMPANIES.  §  127 

A  statute  providing  for  the  condemnation  of  land  for  irri- 
gation purposes  upon  the  payment  of  due  compensation  has 
been  held  to  include  also  the  condemnation  of  the  right  of 
the  landowner  to  the  water  flowing  through  his  lands  upon 
the  payment  of  due  compensation  therefor.22 

The  complaint  in  an  action  by  an  irrigation  company  to 
condemn  water  rights  and  land  must  show  that  the  use  for 

thing  that  appears  in  this  case,  say  that  that  declaration  is  not 
true.  There  are,  however,  examples  to  be  found  in  the  books  where 
the  courts  have  interfered  and  declared  acts  of  the  legislature  vio- 
lative  of  the  constitution  because  they  plainly  undertook  to  appro- 
priate the  property  of  the  citizen  to  private  and  not  to  public  uses; 
but  to  enable  the  court  to  do  so,  the  case  must  be  free  from  doubt. 
We  cannot  say  from  the  facts  before  us  that  this  case  is  of  that 
character.  It  is  well  known  that  there  are  extensive  tracts  of  arid 
land  in  eastern  Oregon,  unproductive  and  almost  worthless  without 
irrigation,  but  which  could  be  made  productive  by  the  use  of  water. 
The  reclamation  of  this  class  of  lands  is  the  object  of  the  act  in 
question,  and  we  cannot  say  that  it  is  misapplication  of  the  power 
of  eminent  domain  to  accomplish  such  results.  Doubtless,  in  some 
instances,  it  may  be  the  means  of  causing  riparian  owners 
much  inconvenience  and  expense  and  even  loss,  but  these  are  some 
of  the  occasional  consequences  of  such  a  law;  but  generally  juries 
may  be  trusted  in  these  matters.  *  *  *  We  cannot  reverse  this 
judgment  without  overturning  the  act  of  the  legislature  under 
which  the  proceedings  were  taken,  and  we  do  not  see  our  way 
clear  to  do  this.  The  act  is  one  that  affects  large  property  interests, 
the  policy  and  scope  of  which  may  be  of  doubtful  utility,  but  these 
are  not  enough  to  enable  us  to  overthrow  it.  Before  we  could  do 
that,  it  must  plainly  contravene  some  provision  of  the  organic 
law,  and  we  cannot  find  that  it  does.  Still,  it  is  an  act  the  execution 
of  which  must  be  closely  scrutinized  by  the  courts,  and  all  of  its 
provisions  construed  strictly.  Whoever  claims  anything  by  virtue 
of  it  must  bring  himself  clearly  within  its  terms."  It  is  to  be 
noticed  that  the  Oregon  act  saves  the  right  of  a  riparian  owner  to 
necessary  water  for  his  own  uses? 

22  McGhee  Irr.  Ditch  Co.  v.  Hudson,  85  Tex.  587,  22  S.  W.  398. 

(261) 


§  128  LAW  OP  IRRIGATION.  [Ch.  13 

which  the  property  is  sought  to  be  condemned  is  a  public 
use,  and  must  also  specify  with  exactness  the  property  and 
rights  to  be  taken.23 

§    128.    Acquisition  of  Right  of  Way. 

Irrigation  companies  have  the  same  rights  as  individuals 
in  respect  to  the  acquisition  of  a  right  of  way  for  their  ditches 
and  other  necessary  works.24  Thus,  under  the  statutes,  an 
irrigation  company  may  condemn  land  for  such  purpose,  the 
rights  of  the  landowners  being  protected  by  provisions  for 
due  compensation,  and  by  regulations  so  limiting  the  right 
of  condemnation  as  to  work  no  unnecessary  injury  upon 
them.25 

The  condemnation  of  land  by  an  irrigation  company  for  its 
ditch  is  a  condemnation  for  a  public  use.26  It  is  not  neces- 

23  Aliso  Water  Co.  v.  Baker,  95  Cal.  268,  30  Pac.  537. 

24  See,  generally,   ante,  c.   4. 

25  Consult  the   statutes   in    Appendix.     See    Lindsay   Irr.    Co.   v. 
Mehrtens,  97  Cal.  676,  32  Pac.  802;   San  Luis  Land,  Canal  &  Imp. 
Co.  v.  Kenilworth  Canal  Co.,  3  Colo.  App.  244,  32  Pac.  860;  Paxton 
&  H.  Irr.  Canal  &  Land  Co.  v.  Farmers'  &  Merchants'  Irr.  &  Land 
Co.,  45  Neb.  884,  64  N.  W.  343,  50  Am.  St.  Rep.  585;   Albuquerque 
Land  &  Irr.  Co.  v.  Gutierrez  (N.  M.,  1900)  61  Pac.  357.     Under  the 
California  statutes,   a  ditch  company  incorporated   in  one  county 
cannot  maintain   an   action  to  condemn   lands   in   another   county 
in  connection  with  water  rights  claimed  therein,  where  the  owner- 
ship of  such  property  is  denied,  and  the  question  of  ownership  is 
therefore  raised  in  the  case,  without  first  filing  a  copy  of  its  ar- 
ticles of  incorporation  in  such  county.     Emigrant  Ditch  Co.  v.  Web- 
ber, 108  Cal.  88,  40  Pac.  1061. 

26  Paxton  &  H.  Irr.  Canal  &  Land  Co.  v.  Farmers'  &  Merchants' 
Irr.  &  Land  Co.,  45  Neb.  884,  64  N.  W.  343,  50  Am.  St.  Rep.  585;  Cum- 
mings  v.  Hyatt,  54  Neb.  35,  74  N.  W.  411;  Prescott  Irr.  Co.  v.    Flath- 
ers,  20  Wash.  454,  55  Pac.  635.     Where  the  statute  provides  that, 
before  property  can  be  taken  for  a  public  use,  it  must  appear  that 

(262) 


Gh.  13]  :  IRRIGATION  COMPANIES.  §   129 

sary  in  a  condemnation  proceeding  to  secure  such  right  of 
way  for  the  irrigation  company  to  show  that  it  has  con- 
demned or  purchased  the  water  rights  of  the  riparian  own- 
ers along  the  stream  which  it  proposes  to  tap,27  though  the 
power  to  condemn  land  may  include  also  the  power  to  con- 
demn such  water  rights.28 

§    129.    By-Laws  and  Regulations. 

An  irrigation  company  may  undoubtedly  adopt  reasonable 
by-laws  and  regulations,  so  long  as  these  are  not  in  conflict 
with  law;  but  a  ditch  company  diverting  water  from  a  nat- 
ural stream  for  general  purposes  of  irrigation  cannot,  by  any 
provision  of  its  by-laws,  rules  or  regulations,  exempt  itself 
or  its  stockholders  from  the  operation  of  the  constitution  or 
laws  of  the  state.29  And  a  consumer  under  an  irrigating 
ditch  having  an  affirmative  right  under  a  statute  to  purchase 
water  from  the  ditch,  who  has  complied  with  the  provisions 
of  the  statute,  cannot  be  required,  as  a  condition  precedent 
to  the  exercise  of  his  right,  to  acknowledge  the  equity  of  all 
the  rules  adopted  by  the  ditch  owner.30  Nor  can  the  consti- 
tutional right  of  individual  consumers,  upon  tender  of  the 

the  taking  is  necessary  for  such  use,  and  the  question  as  to  the 
necessity  of  the  taking  is  submitted  to  a  jury,  the  court  cannot  dis- 
regard their  verdict,  and  find  differently.  Wilmington  Canal  &  Res- 
ervoir Co.  v.  Dominguez,  50  Cal.  505.  Ditches  and  canals  construct- 
ed by  an  irrigation  company  may  be  designated  by  the  legislature 
as  "works  of  internal  improvement."  Cummings  v.  Hyatt,  54  Neb. 
35,  74  N.  W.  411. 

27  Prescott  Irr.  Co.  v.  Flathers,  20  Wash.  454,  55  Pac.  635. 

28  McGhee  Irr.  Ditch  Co.  v.  Hudson,  85  Tex.  587,  22  S.  W.   398. 
2»  Combs  v.  Agricultural  Ditch  Co.,  17  Colo.  146,  28  Pac.  966. 
«o  Golden  Canal  Co.  v.  Bright,  8  Colo.  144,  6  Pac.  142. 

(263) 


§   130  LAW  OF  IRRIGATION.  [Ch.  13 

regular  rates,  to  water  diverted  by  the  carrier,  be  taken  away 
or  qualified  by  a  by-law,  providing  that  no  water  shall  be  sold 
from  the  company's  ditch  except  to  stockholders,  thus  com- 
pelling the  applicant  for  water  to  purchase  stock  in  the  com- 
pany as  a  condition  precedent  to  receiving  the  water.31  But 
where  the  corporation  is  organized  for  the  sole  purpose  of 
supplying  water  to  its  stockholders,  and  not  for  the  sale, 
rental  or  distribution  of  water  to  the  public  generally,  a  by- 
law that  the  water  shall  be  sold  to  or  used  by  stockholders 
only  is  valid.32  The  right  of  a  customer  to  change  the  place 
of  use  of  the  water  cannot  be  impaired  or  restricted  by  a 
by-law  having  that  effect,  unless  such  by-law  was  authorized 
by  the  company's  charter,  or  was  assented  to  by  the  con- 
sumer.33 But  while  an  irrigation  company  may  not  impose 
conditions  that  operate  to  deprive  consumers  of  the  enjoy- 
ment of  their  constitutional  rights,  it  may  require  them  to 
exercise  such  rights  under  reasonable  regulations  and  limi- 
tations.34 

§    130.    Irrigation  Companies  Public  Carriers  of  Wate,r. 

Irrigation  companies  furnishing  water  to  consumers  for 
compensation,  although  private  corporations,  35  are  public  or 
quasi  public  carriers  of  water,  charged  with  a  public  duty 

31  Combs  v.  Agricultural  Ditch  Co.,  17  Colo.  146,  28  Pac.  966. 

32  McFadden  v.  Board  Sup'rs  Los  Angeles  County,  74  Gal.   571, 
16  Pac.  397. 

33Knowles  v.  Clear  Creek,  P.  R.  Mill  &  Ditch  Co.,  18  Colo.  209, 
32  Pac.  279. 

3*  Wright  v.  Platte  Val.  Irr.  Co.   (Colo.  Sup.,  1900)   61  Pac.  603. 

35  Corporations  engaged  in  the  business  of  furnishing  water  for 
Irrigation,  under  the  laws  of  California,  whether  they  acquire  the 
water  by  appropriation  of  the  waters  of  the  state  or  otherwise, 
are  private  corporations.  San  Diego  Flume  Co.  v.  Souther,  90 

(264) 


Ch.  13]  IRRIGATION  COMPANIES.  §   130 

or  trust.36  As  defined  under  the  Colorado  constitution,  they 
exist  largely  for  the  benefit  of  others,  being  engaged  in  the 
business  of  transporting,  for  hire,  water  owned  by  the  pub- 
lic, to  the  people  owning  the  right  to  its  use.  They  are  per- 
mitted to  acquire  certain  rights  as  against  those  subsequently 
diverting  water  from  the  same  natural  stream.  They  may 
exercise  the  power  of  eminent  domain.  Their  business  is 
affirmatively  sanctioned,  and  their  profits  or  emoluments  are 
fully  guaranteed  by  the  protection  afforded  to  their  property 
and  interests.37  But  as  public  carriers,  and  in  consideration 
of  this  recognition,  and  the  privileges  and  protection  given, 
they  are  charged  with  certain  duties  towards  the  public;  and 
are  subject  to  a  reasonable  control  by  the  state  legislature,38 

Fed.  164.  In  this  case,  with  reference  to  the  use  of  water  when 
distributed  by  an  irrigation  company,  the  court  said:  "The  use  is 
public  only  to  the  extent  that  the  corporation  may  be  compelled 
to  furnish  the  water,  provided  it  has  the  capacity  to  do  so,  to  all 
who  receive  and  pay  for  the  same,  and  that  the  rule  of  compensa- 
tion shall  be  fixed  by  the  law  in  case  the  parties  cannot  agree." 

ae  Atlantic  Trust  Co.  v.  Woodbridge  Canal  &  Irr.  Co.,  79  Fed. 
39,  501;  Wheeler  v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487; 
Junction  Creek,  etc.,  Ditch  Co.  v.  City  of  Durango,  21  Colo.  194,  40 
Pac.  356;  Farmers'  Independent  Ditch  Co.  v.  Agricultural  Ditch  Co., 
22  Colo.  513,  45  Pac.  444;  Wyatt  v.  Larimer  &  Weld  Irr.  Co.,  18  Colo. 
298,  33  Pac.  144,  reversing  1  Colo.  App.  480,  29  Pac.  906;  Prescott 
Irr.  Co.  v.  Flathers,  20  Wash.  454,  55  Pac.  635.  A  ditch  used  for  the 
carriage  of  water  for  hire  to  the  people  generally  is  at  least  quasi 
public.  Junction  Creek,  etc.,  Ditch  Co.  v.  City  of  Durango,  21  Colo. 
194,  40  Pac.  356.  And  the  ditch  company  is  a  quasi  public  cor- 
poration. San  Joaquin  &  K.  R.  Canal  &  Irr.  Co.  v.  Stanislaus 
County,  90  Fed.  516. 

-"Wheeler  v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487. 

•i*  Merrill  v.  Southside  Irr.  Co.,  112  Cal.  426,  44  Pac.  720;  Wheeler 
v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487;  Prescott  Irr. 
Co.  v.  Flathers,  26  Wash.  454,  55  Pac.  635. 

(265) 


§  131  LAW  OF  IRRIGATION.  [Ch.  13 

and  to  the  general  irrigation  laws.39  As  pointed  out  in  a 
leading  case,  the  Colorado  doctrines  of  ownership  and  appro- 
priation of  water  necessarily  give  the  carrier  of  water  an 
exceptional  status,  differing  in  some  particulars  from  that 
of  the  ordinary  common  carrier.  Certain  peculiar  rights 
are  acquired  in  connection  with  the  water  diverted,  which 
are  dependent  for  their  birth  and  continued  existence  upon 
the  use  made  by  the  consumer.40  The  nature  of  these  rights 
has  been  considered  in  a  previous  section.41 

§    131.    Duty  to  Furnish  Water  to  Consumers. 

An  irrigation  company  authorized  to  carry  water  for  hire 
is  charged  with  a  corresponding  duty  to  furnish  such  water 
to  consumers  in  a  proper  case,  and  cannot  arbitrarily  refuse 
to  supply  an  actual  bona  fide  consumer,  making  seasonable 
application,  and  offering  proper  compensation  therefor.42 
And  a  corporation  charged  with  the  duty  of  furnishing  water 
to  the  public  cannot  escape  the  performance  of  this  duty  by 
asserting  that  it  was  also  incorporated  for  some  private  pur- 
pose or  purposes.43  The  fact  that  consumers  have  at  times 
been  permitted  to  use  more  water  from  the  company's  ditch 
than  they  were  entitled  to  will  not  prevent  them  from  main- 

3»  Munroe  v.  Ivie,  2  Utah,  535. 

40  Wheeler  v.  Northern  Colo.  Irr.  Co.  10  Colo.  582,  17  Pac.  487. 
See  Wright  v.  Platte  Val.  Irr.  Co.  (Colo.  Sup.,  1900)  61  Pac.  603. 

41  See  ante,  §  126. 

42  McCrary  v.  Beaudry,  67  Cal.  120,  7  Pac.  264;  Golden  Canal  Co. 
v.  Bright,  8  Colo.  144,  6  Pac.  142;  Combs  v.  Agricultural  Ditch  Co., 
17   Colo.  146,  28  Pac.  966;   Western  Irr.   &  Land  Co.  v.   Chapman 
(Kan.  App.,  1899)  59  Pac.  1098;  and  cases  cited  in  note  56,  infra. 

43  Lanning  v.  Osborne,  76  Fed.  319;    Price  v.  Riverside  Land  & 
Irr.  Co.,  56  Cal.  431;   Merrill  v.  Southside  Irr.  Co.,  112  Cal.  426,  44 
Pac.  720. 

(266) 


Ch.  13]  IRRIGATION  COMPANIES.  §   131 

taining  their  right  to  the  water  to  which  they  are  in  fact  en- 
titled.44 

It  is  provided  by  statute  in  Colorado  that  persons  who  have 
purchased  and  used  water  from  a  ditch  or  reservoir  for  the 
irrigation  of  their  lands,  and  have  not  ceased  to  do  so  for 
the  purpose  or  with  intent  to  procure  water  from  some  other 
source  of  supply,  shall  have  the  right  to  continue  to  purchase 
water  to  the  same  amount  on  paying  or  tendering  the  price 
fixed  by  the  county  commissioners,  etc.45  This  section  confers 
an  affirmative  right  upon  the  prior  purchaser,  who  has  com- 
plied with  the  provisions  thereof,  to  continue  his  purchase  of 
water,  and  he  cannot  be  required,  as  a  condition  precedent 
to  the  exercise  of  this  right,  to  acknowledge  the  equity  of  all 
the  rules  adopted  by  the  ditch  owner ;  nor  does  the  fact  that 
the  consumer  may  be  able  to  obtain  water  from  some  other 
source  affect  such  right.46 

One  who  has  procured  and  used  the  water  on  his  land  for 
a  single  season  may  invoke  the  provisions  of  this  statute  in 
so  far  as  to  require  the  company  to  accord  to  him  a  prefer- 
ence to  the  same  amount  of  water  for  subsequent  years  over 
new  applicants.47  The  statute  is  simply  an  assurance  of  the 
right  to  continue,  under  specified  circumstances,  a  use  al- 
ready enjoyed,  and  does  not  give  one  who  has  never  had  the 
use  of  the  water  a  right  thereto,  and  therefore  does  not  re- 
peal other  provisions  conferring  such  right.45 

44  Larimer  &  Weld  Irr.  Co.  v.  Wyatt,  23  Colo.  480,  48  Pac.  528. 

45  Mills'  Ann.  St.  §  2297.     A  similar  statute  is  in  force  in  Idaho. 
Wilterding  v.  Green  (Idaho,  1896)  45  Pac.  134. 

46  Golden  Canal  Co.  v.  Bright,  8  Colo.  144,  6  Pac.  142. 

47  Northern  Colo.  Irr.  Co.  v.  Richards,  22  Colo.  450,  45  Pac.  423. 

48  Wheeler  v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487. 

(267) 


§   131  LAW  OF  IRRIGATION.  [Ch.  13 

In  California  it  is  provided  that  whenever  an  irrigation 
corporation  furnishes  water  to  irrigate  lands  sold  by  it,  the 
right  to  such  water  shall  remain  a  perpetual  easement  to  the 
land  sold;  and  whenever  any  person  cultivating  land  on  the 
line,  and  within  the  flow  of  the  corporation's  ditch,  has  been 
furnished  water  by  it  for  the  irrigation  of  his  land,  h6  shall 
be  entitled  to  the  continued  use  of  such  water  upon  the  same 
terms  as  those  who  have  purchased  their  land  from  the  cor- 
poration.49 The  fact  that  the  owner  of  land  lying  under  an 
irrigating  ditch,  by  contract  with  the  irrigation  company, 
waived  the  provisions  of  this  statute,  and  agreed  to  pay  a 
higher  rate  than  that  charged  other  persons,  does  not  affect 
his  right  to  the  continued  use  of  the  water  at  the  regular  rates 
after  the  expiration  of  his  contract.50  And  a  consumer 
whose  land  is  situated  within  the  flow  of  the  distributing  sys- 
tem of  an  irrigation  company,  and  who  has,  by  means  of 
water  thereby  supplied  to  him,  made  valuable  improvements 
on  his  land,  cannot  be  thereafter  lawfully  deprived  of  such 
water  in  order  that  the  distributor  may  supply  later  comers, 
even  though  a  larger  area,  by  reason  of  more  favorable  con- 
ditions, may  thus  be  brought  under  cultivation.51 

Persons  having  a  prior  right  to  receive  water  from  an 
irrigating  ditch  may  enjoin  the  company  from  furnishing 
water  to  later  comers,  so  as  to  compel  them  to  prorate  with 
the  latter.52  So,  also,  stockholders  in  a  mutual  ditch  corn- 
is  Civ.  Code,  §  552;  Merrill  v.  Southside  Irr.  Co.,  112  Cal.  426,  44 
Pac.  720. 

so  San  Diego  Land  &  Town  Co.  v.  Sharp,  97  Fed.  394. 
si  Mandell  v.  San  Diego  Land  &  Town  Co.,  89  Fed.  295;  San  Diego 
Land  &  Town  Co.  v.   Sharp,  97  Fed.  394. 

52  Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth,  13 
Colo.  Ill,  21  Pac.  1028;  Wyatt  v.  Larimer  &  Weld  Irr.  Co.,  18  Colo. 

(268) 


Ch.  13]  IRRIGATION  COMPANIES.  §   131 

pany  may  enjoin  the  company  from  disposing  of  any  of  the 
water  diverted  to  any  other  persons  than  bona  fide  stock- 
holders in  the  corporation,  where  the  effect  of  this  would  be 
to  deprive  them  of  some  of  the  water  to  which  they  are  en- 
titled.53 And  an  irrigation  company  is  liable  to  a  stock- 
holder for  injury  occasioned  by  its  permitting  other  stock- 
holders to  divert  more  water  than  they  were  entitled  to  under 
the  terms  of  incorporation.54 

In  order  to  be  entitled  to  water  from  an  irrigating  ditch, 
the  consumer  must  make  seasonable  application  therefor,  and 
pay  or  tender  the  proper  price  for  the  same.  And  where 
an  irrigation  company  has  adopted  a  fair  and  reasonable  rule 
as  to  the  time  before  which  the  application  must  be  made,  it 
seems  that  a  failure  to  make  application  by  the  time  pre- 
scribed might  result  in  a  forfeiture  of  the  statutory  right  to 
obtain  the  water,  provided  the  water  has  in  the  meantime 
been  disposed  of  to  other  persons.  But  no  such  forfeiture 
will  result  if  application  is  afterwards  made  while  the  ditch 
owner  is  still  free  from  conflicting  obligations,  and  is  able  to 
grant  the  applicant's  request.55 

298,  33  Pac.  144;  Brown  v.  Farmers'  High  Line  Canal  &  Reservoir 
Co.  (Colo.  Sup.)  56  Pac.  183.  In  the  case  last  cited  it  was  held 
that  stockholders  of  the  defendant  corporation  whose  priorities  were 
subsequent  to  that  of  the  plaintiff,  and  who  claimed  the  right  to 
a  prorating  by  the  latter,  were  necessary  parties,  and  properly 
joined  as  defendants. 

•r>3  McDermott  v.  Anaheim  Union  Water  Co.,  124  Cal.  112,  56  Pac. 
779.  In  this  case  the  action  was  brought  to  enjoin  the  defendant 
company  from  furnishing  water  to  new  stockholders,  also  made  de- 
fendants, to  whom  stock  had  been  issued  under  a  void  amendment 
of  the  articles  of  incorporation. 

s*  O'Connor  v.  North  Truckee  Ditch  Co.,  17  Nev.  245,  30  Pac.  882. 

55  Golden  Canal  Co.  v.  Bright,  8  Colo.  144,  6  Pac.  142. 

(269) 


§  131  LAW  OF  IRRIGATION.  [Ch.  13 

The  delivery  of  water  by  an  irrigation  company  to  a  per- 
son entitled  thereto  may  be  compelled  by  the  writ  of  man- 
damus;56 and  the  writ  will  lie  to  enforce  a  right  to  water 
where  conferred  by  contract,  as  well  as  when  conferred  by 
statute.57  The  fact  that  the  party  applying  for  such  writ 
may  maintain  an  action  for  damages  in  case  he  should  suffer 
injury  in  loss  of  his  crops  by  reason  of  the  company's  failure 
to  furnish  water  does  not  affect  his  right  to  the  writ.58  But 
before  applying  for  a  writ  of  mandamus,  an  express  demand 
or  request  must  be  made  on  the  company  for  the  delivery  of 
the  water,  which  demand  must  be  definite  and  specific.  The 
preliminary  demand,  the  prayer  of  the  petition,  and  the  judg- 
ment must  be  for  the  delivery  of  a  specific  quantity  of  water.59 

It  is  no  defense  to  mandamus  proceedings  to  compel  an 

se  Price  v.  Riverside  Land  &  Irr.  Co.,  56  Cal.  431;  Merrill  v. 
Southside  Irr.  Co.,  112  Cal.  426,  44  Pac.  720;  Golden  Canal  Co.  v. 
Bright,  8  Colo.  144,  6  Pac.  142;  Wheeler  v.  Northern  Colo.  Irr.  Co., 
10  Colo.  582,  17  Pac.  487 ;  Townsend  v.  Fulton  Irr.  Ditch  Co.,  17  Colo. 
142,  29  Pac.  453;  Combs  v.  Agricultural  Ditch  Co.,  17  Colo.  146, 
28  Pac.  966;  People  v.  Farmers'  High  Line  Canal  &  Reservoir  Co., 
25  Colo.  202,  54  Pac.  626.  See  Wilterding  v.  Green  (Idaho,  1896) 
45  Pac.  134;  Bright  v.  Farmers'  High  Line  Canal  &  Reservoir  Co., 
3  Colo.  App.  170,  32  Pac.  433. 

5?  People  v.  Farmers'  High  Line  Canal  &  Reservoir  Co.,  25  Colo. 
202,  54  Pac.  626. 

ss  Golden  Canal  Co.  v.  Bright,  8  Colo.  144,  6  Pac.  142.  But  in 
Fulton  Irr.  Ditch  Co.  v.  Twombly,  6  Colo.  App.  554,  42  Pac.  253,  it 
was  held  that  the  equitable  remedy  of  a  mandatory  writ  of  injunc- 
tion would  not  be  granted  to  compel  the  delivery  of  water  under  a 
contract  without  an  allegation  of  the  insolvency  of  the  defendant, 
or  other  ground  for  equitable  relief,  and  the  fact  that  growing  crops 
would  be  lost  unless  the  water  was  furnished  would  not  confer 
equitable  jurisdiction,  for  such  loss  is  capable  of  compensation  in 
damages,  and  so  would  not  be  irreparable  injury. 

5»  Price  v.  Riverside  Land  &  Irr.  Co.,  56  Cal.  431. 
(270) 


Ch.  13]  IRRIGATION  COMPANIES.  §   131 

irrigation  company  to  furnish  water  to  a  consumer,  that  the 
defendant  has  not  sufficient  water  to  supply  the  plaintiff  and 
others  needing  water,  where  there  is  no  averment  that  such 
other  persons  have  demanded  or  purchased  water.  Nor  is 
the  expected  deprivation  in  the  future  of  some  of  its  water 
supply  a  defense,  though  such  deprivation  may  be  a  defense 
when  it  occurs.60 

The  petition  for  a  writ  of  mandamus  must,  of  course, 
state  all  the  facts  necessary  to  justify  granting  the  relief 
asked  for,61  but  proceedings  in  such  cases  are  necessarily 
somewhat  summary  in  their  nature.  To  be  effective,  the 
relief  must  be  immediate,  and  hence  trial  courts  should  be 
liberal  in  matters  of  pleading  and  practice,  lest  the  petition- 
er's crops  should  be  lost  by  reason  of  a  delay  over  legal 
technicalities.62  The  petition  for  the  writ  of  mandamus  and 
the  affidavit  in  support  thereof  need  not  necessarily  be  sep- 
arate papers.  Since  the  petition  itself  must  state  all  the 
facts  required  to  be  set  out  in  the  affidavit,  it  is  a  sufficient 
compliance  with  a  statute  requiring  the  filing  of  a  petition 
and  affidavit  that  the  petition  itself  be  verified.63 

While  the  delivery  of  water  may  be  compelled  by  the  writ 
of  mandamus,  such  writ  is  not  an  appropriate  remedy  to 
secure  a  perpetual  right  to  the  use  of  water  for  irrigation. 
The  right  of  a  consumer  to  water  from  the  company's  ditch 
can  be  only  an  annually  recurring  right,  dependent,  among 
other  things,  upon  an  annual  tender  of  the  charges.64 

eo  Merrill  v.  Southside  Irr.  Co.,  112  Cal.  426,  44  Pac.  720. 
si  Golden  Canal  Co.  v.  Bright,  8  Colo.  144,  6  Pac.  142 ;   Wheeler 
v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487. 

62  Townsend  v.  Fulton  Irr.  Ditch  Co.,  17  Colo.  142,  29  Pac.  453. 

es  Golden  Canal  Co.  v.  Bright,  8  Colo.  144,  6  Pac.  142. 

64  Townsend  v.  Pulton  Irr.  Ditch  Co.,  17  Colo.  142,  29  Pac.  453.   So, 

(271) 


.§   131  LAW  OF  IRRIGATION.  [  Ch.  13 

An  irrigation  company  which  contracts  to  f urnish  water  to 
a  consumer,  but  negligently  or  willfully  fails  to  furnish  such 
water  when  it  is  its  duty  to  do  so,  is  liable  to  the  consumer 
for  damage  suffered  in  the  loss  of  crops  by  reason  of  such 
breach  of  contract.65  And  in  such  case,  the  company  cannot 
excuse  itself  by  showing  that  there  was  a  scarcity  of  water  in 
the  stream  from  which  its  ditch  was  supplied,  where  the 
loss  could  have  been  prevented  by  the  exercise  of  proper 
measures  to  utilize  the  water  supply  available.  It  must 
clearly  appear  that  the  failure  to  furnish  water  was  charge- 
able to  inevitable  accident,  and  not  to  negligence  and  inat- 
tention.66 The  existence  of  an  injunction  restraining  the 
company  from  diverting  water  from  its  source  of  supply  has 
been  held  not  a  legal  excuse  for  failure  to  deliver  water  ac- 
cording to  contract.07  But  where  the  failure  to  furnish 
water  is  attributable  to  the  insufficiency  of  the  rainfall,  from 
which  source  the  canal  was  to  be  supplied,  and  not  to  any 
negligence  or  inattention  of  the  company,  the  company  is 
not  liable ;  and  in  such  case  the  consumer  is  not  liable  to  the 
company  for  water  rent.68  Where,  in  an  action  against  an 

also,  a  final  decree  of  a  perpetual  mandatory  injunction  to  en- 
force the  delivery  of  water  under  a  contract  is  erroneous,  and  the 
life  of  the  injunction  should  be  made  only  coextensive  with  the 
existence  of  the  contract.  Fulton  Irr.  Ditch  Co.  v.  Twombly,  6  Colo. 
App.  554,  42  Pac.  253. 

es  Sample  v.  Fresno  Flume  &  Irr.  Co.  (Cal.,  1900)  61  Pac.  1085; 
Northern  Colo.  Irr.  Co.  v.  Richards,  22  Colo.  450,  45  Pac.  423;  Paw- 
nee Land  &  Canal  Co.  v.  Jenkins,,  1  Colo.  App.  425,  29  Pac.  381.  See, 
also,  Hewitt  v.  San  Jacinto  &  P.  V.  Irr.  Dist,  124  Cal.  186,  56 
Pac.  893. 

66  Pawnee  Land  &  Canal  Co.  v.  Jenkins,  1  Colo.  App.  425,  29  Pac. 
381. 

«"  Sample  v.  Fresno  Flume  &  Irr.  Co.  (Cal.,  1900)  61  Pac.  1085. 

es  Landers  v.  Garland  Canal  Co.  (La.,  1900)  27  So.  727. 

(272) 


Ch.  13]  IRRIGATION  COMPANIES.  §   131 

irrigation  company  for  failure  to  furnish  water  according  to 
contract,  the  agreement  to  furnish  water  and  the  failure  to  do 
so  are  proved,  it  devolves  upon  the  defendant  to  explain 
such  failure,  the  sufficiency  of  the  explanation  offered  being 
a  question  for  the  jury.60 

In  an  action  against  an  irrigation  company  for  damages 
for  loss  of  crops  on  account  of  the  defendant's  failure  to 
furnish  water,  the  measure  of  damages  should  be  the  actual 
injury  suffered.  Thus,  the  rental  value  of  the  land  is  not 
the  proper  measure  of  damages  unless  the  owner  is  deprived 
of  the  entire  use  of  the;  land.  And  where  the  loss  of  the 
use  of  the  land  is  not  entire,  the  allowance  of  the  whole 
rental  value,  without  deducting  the  benefits  derived  from  the 
partial  use,  is  erroneous.  Where  a  partial  crop  is  raised, 
the  proper  measure  of  damages  is  the  difference  between  the 
amount  realized  from  the  crops  produced  from  the  land  and 
the  amount  that  would  have  been  realized  therefrom  had  the 
water  been  furnished,  less  the  added  cost  of  raising,  harvest- 
ing and  marketing  the  product.  The  loss  of  trees,  seeds  and 
labor  may  constitute  a  proper  element  of  damage,  but  no 
compensation  should  be  allowed  for  permanent  improve- 
ments made  on  the  land,  and'  alleged  to  have  become  less 
valuable  on  account  of  the  want  of  water,  or  for  depreciation 
in  the  value  of  live  stock  and  farming  implements.70 

The  consumer's  right  to  water  dates  from  the  time  of  de- 
mand and  tender  of  the  price,  and  hence,  in  an  action  for 
damages  for  failure  to  furnish  water,  the  defendant  company 

69  Rocky  Ford  Canal,  etc.,  Co.  v.  Simpson,  5  Colo.  App.  30,  36 
Pac.  638. 

™  Northern  Colo.  Irr.  Co.  v.  Richards,  22  Colo.  450,  45  Pac.  423. 

(273) 


§  132  LAW  OF  IRRIGATION.  [Ch.  13 

is  liable  only  for  loss  suffered  after  such  demand  and  ten- 
der.71 

£    132.    Contracts  for  Water  Rights. 

Water  is  generally  furnished  by  an  irrigation  company 
-under  written  contracts  with  the  consumers.  Such  contracts 
are,  of  course,  subject  to  the  usual  rules  of  construction  of 
contracts.72  A  contract  by 'which  an  irrigation  confpany 
promises  to  deliver  to  a  consumer  a  certain  quantity  of  water 

fi  Western  Irr.  &  Land  -Co.  v.  Chapman  (Kan.  App.,  1899)  59 
Pac.  1098. 

72  As  to  the  construction  of  particular  contracts,  see  Consolidated 
Canal  Co.  v.  Peters  (Ariz.,  1896)  46  Pac.  74;  Fresno  Canal  &  Irr. 
Co.  v.  Dunbar,  80  Cal.  530,  22  Pac.  275;  San  Diego  Flume  Co.  v. 
Chase,  87  Cal.  561,  25  Pac.  756,  26  Pac.  825;  Russ  Lumber  &  Mill 
Co.  v.  Muscupiabe  Land  &  Water  Co.,  120  Cal.  521,  52  Pac.  995; 
Hewitt  v.  San  Jacinto  &  P.  V.  Irr.  Dist,  124  Cal.  186,  56  Pac.  893; 
Sample  v.  Fresno  Flume  &  Irr.  Co.  (Cal.,  1900)  61  Pac.  1085;  Wyatt 
v.  Larimer  &  Weld  Irr.  Co.,  18  Colo.  298,  33  Pac.  144,  23  Colo.  480, 
48  Pac.  528;  Wright  v.  Platte  Val.  Irr.  Co.  (Colo.  Sup.,  1900)  61 
Pac.  603;  Rockwell  v.  Highland  Ditch  Co.,  1  Colo.  App.  396,  29 
Pac.  285;  Brighton  &  N.  P.  Irr.  Co.  v.  Little,  14  Utah,  42,  46  Pac.  268. 
See,  also,  Giddings  v.  76  Land  &  Water  Co.,  109  Cal.  116,  41  Pac. 
788.  Where  a  landowner  contracted  with  an  irrigation  company 
that  he  and  his  successors  in  interest  should  take  water  from  the 
company  at  a  certain  price,  payable  annually,  and  that  the  contract 
and  covenants  therein  contained  should  "run  with  and  bind  the 
land,"  it  was  held  that  such  contract  created  a  lien  on  the  land 
for  water  furnished,  which  was  binding  on  the  landowner's  suc- 
cessors in  interest  with  notice  thereof,  though  such  covenants,  not 
being  contained  in  grants  of  the  estate,  did  not  run  with  the  land 
so  as  to  bind  the  successors  in  interest  personally.  Fresno  Canal 
&  Irr.  Co.  v.  Rowell,  80  Cal.  114,  22  Pac.  53;  Fresno  Canal  &  Irr. 
Co.  v.  Dunbar,  80  Cal.  530,  22  Pac.  275. 

Where  a  contract  between  an  irrigation  company  and  consumers 
under  its  ditch  provided  that  the  company  should  turn  the  ditch 
over  to  the  owners  of  the  water  rights  when  the  number  of  water 

(274) 


Ch.  13]  IRRIGATION  COMPANIES.  §   132 

annually,  upon  the  annual  payment'of  a  specified  considera- 
tion therefor,  constitutes  a  mere  option,  which  may  be  ter- 
minated by  the  consumer  at  the  end  of  any  year ;  and  when 
the  consumer  causes  the  county  commissioner  to  fix  a  rate  for 
the  delivery  of  water  from  the  company's  ditch,  and  declines 
to  pay  the  price  named  in  the  contract,  he  thereby  terminates 
the  contract.73  A  provision  in  such  contract  that,  upon 
failure  to  pay  the  annual  charge  specified,  the  consumer  for- 
feits and  relinquishes  all  rights  and  claims  whatsoever  in  and 
to  the  use  of  the  water  from  the  ditch,  applies  only  to  the 
rights  and  claims  given  by  the  contract,  and  not  to  the  con- 
sumer's constitutional  or  statutory  right  to  obtain  water  from 
the  ditch.74 

Contracts  by  an  irrigation  company  to  dispose  of  water 
in  excess  of  its  ability  to  furnish  water  are  unfair  and  illegal ; 
and  parties  having  a  prior  right  to  take  water  from  the  com- 
pany's canal  may  enjoin  the  company  from  selling  addi- 
tional water  rights  beyond  the  capacity  of  the  canal,  so  as  to 
endanger  their  own  supply,  and  compel  them  to  prorate 
with  the  new  comers.75  A  provision  in  a  contract  between  a 

rights  sold  and  in  force  should  equal  the  "estimated  capacity  of  the 
company's  canal  to  furnish  water,"  it  was  held  that  this  clause 
should  be  construed  as  having  reference  to  the  water  supply,  as 
well  as  to  the  physical  capacity  of  the  ditch.  Wyatt  v.  Larimer  & 
Weld  Irr.  Co.,  18  Colo.  298,  33  Pac.  144,  23  Colo.  480,  48  Pac.  528.  As 
to  a  similar  contract,  see  La  Junta  &  Lamar  Canal  Co.  v.  Hess,  6 
Colo.  App.  497,  42  Pac.  50. 

™  South  Boulder  &  R.  C.  Ditch  Co.  v.  Marfell,  15  Colo.  302,  25 
Pac.  504. 

f*  Id. 

"3  Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth, 
13  Colo.  Ill,  21  Pac.  1028;  Wyatt  v.  Larimer  &  Weld  Irr.  Co.,  18 
Colo.  298,  33  Pac.  144.  See,  also,  Lanning  v.  Osborne,  76  Fed.  319, 
and  ante,  §  131. 

(275) 


§133  %  LAW  OF  IRRIGATION.  [Ch.  13 

ditch  company  and  a  consumer  that  if,  at  any  time,  the  com- 
pany should  fail  or  refuse  to  furnish  water  according  to  the 
contract,  the  consumer  might  take  it  himself  from  the  com- 
pany's ditch,  has  in  Colorado  been  held  void  on  the  ground 
that  such  a  provision  is  inconsistent  with  the  state  statute 
providing  that  the  distribution  of  water  from  a  canal  shall 
be  under  the  control  of  a  superintendent  appointed  by  the 
ditch  company.76  And  it  seems  that  such  provision  would  be 
void  and  inoperative  for  the  further  reasons  that  it  confers 
a  right  incompatible  with  the  right  of  control  incident  to 
the  right  of  property,  and  also  because  it  is  against  public 
policy,  as  tending  to  confusion  and  breach  of  the  peace,  in 
allowing  claimants  to  take  whatever  water  they  required, 
regardless  of  the  rights  of  others  having  the  same  legal 
right.77 

The  decisions  of  state  courts  as  to  the  validity  of  contracts 
between  irrigation  companies  and .  consumers,  made  under 
the  irrigation  laws  of  the  state,  are  binding  on  the  federal 
courts.78  A  court  of  equity  will  not  interfere  to  decree  the 
cancellation  of  a  contract  to  furnish  water  unless  facts  are 
alleged  in  the  bill  showing  the  necessity  of  equitable  inter- 
ference.79 

S    133.    Rates  for  Furnishing  Water. 

The  owners  of  irrigating  ditches  and  canals  are,  of  course, 
entitled  to  a  reasonable  compensation  for  furnishing  water 

"o  White  v.  Farmers'  High  Line  Canal  &  Reservoir  Co.,  22  Colo. 
191,  43  Pac.  1028,  affirming  5  Colo.  App.  1,  31  Pac.  345. 

77  it  was  on  these  grounds  that  the  court  of  appeals  held  the 
provision  void. 

78  San  Diego  Flume  Co.  v.  Souther,  90  Fed.  164. 

79  Id. 

(276) 


Ch.  13]  IRRIGATION  COMPANIES.  §   133 

to  consumers.80  As  we  have  seen,  an  irrigation  company 
furnishing  water  to  consumers  for  hire  is  a  public  carrier, 
and  charged  with  a  public  duty  or  trust,  and  is  therefore 
subject  to  the  control  of  the  state  through  the  legislature  or 
courts.81  Among  the  most  important  of  the  matters  in 
which  such  companies  are  subject  to  control  is  the  question 
of  the  rates  to  be  charged  for  delivering  water.  Even  where 
the  state  constitutions  or  statutes  are  silent  as  to  the  amount 
of  the  charge  for  transportation  of  the  water,  and  the  time 
and  manner  of  its  collection,  it  seems  that  the  demands  of 
the  company  in  these  respects  must  be  reasonable.  In  vol- 
untarily engaging  in  the  business  of  carrying  water  as  a 
public  agency,  in  the  absence  of  any  legislation  on  the  sub- 
ject, an  irrigation  company  must  be  held  to  have  submitted 
itself  to  a  reasonable  judicial  control  in  the  matter  of  regula- 
tions and  charges,  and  any  attempt  by  it  to  use  the  monopoly 
of  business  along  the  line  of  its  canal  which  it  usually  has 
for  the  purpose  of  coercing  compliance  with  unreasonable  and 
exorbitant  demands  would  lay  the  foundation  for  judicial 
interference.82 

In  several  states  it  is  provided  by  constitution  or  statute, 
or  both,  that  the  boards  of  county  commissioners  shall  fix  the 

soWilterding  v.  Green  (Idaho,  1896)  45  Pac.  134.  Where,  in  an 
action  by  an  irrigation  company  to  recover  the  contract  price  of 
water  furnished  by  it,  the  plaintiff  proves  that  the  water  was 
supplied  at  the  place  agreed  upon,  a  refusal  to  permit  the  defendant 
to  prove  that  the  plaintiff  so  negligently  and  unskillfully  construct- 
ed its  ditch  as  to  amount  to  a  failure  to  perform  its  part  of  the  con- 
tract, and  so  as  to  injure  the  defendant's  land,  is  proper,  such  evi- 
dence being  wholly  immaterial.  Fresno  Canal  &  Irr.  Co.  v.  Dun- 
bar,  80  Cal.  530,  22  Pac.  275. 

si  See  ante,  §  130. 

ss  Wheeler  v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487. 

(277) 


§   133  LAW  OF  IRRIGATION.  [Ch.  13 

maximum  rates  to  be  charged  for  the  carriage  of  water,  wheth- 
er furnished  by  individuals  or  corporations.83  Where  the 
state  constitution  provides  that  the  legislature  shall  provide 
by  law  the  manner  in  which  maximum  rates  may  be  estab- 
lished, the  legislature  must  provide  by  law  the  manner  in 
which  such  rates  shall  be  established,  and  it  cannot 
itself  fix  the  rates  to  be  charged.84  Under  a  provision  that 
any  party  or  parties  interested  in  procuring  water  may  peti- 
tion the  county  commissioners  to  establish  a  maximum  rate, 
it  is  not  necessary  that  all  consumers  using  or  seeking  water 
from  the  same  carrier  should  join  in  the  petition.  Nor  need 
the  petitioners  have  been  consumers  from  the  company's 
ditch,  for  persons  who  have  never  been  consumers  therefrom 
have  a  right,  under  such  provision,  to  petition  for  the  estab- 
lishment of  a  maximum  water  rate,  and  take  advantage  there- 
of, if  the  water  diverted  by  the  carrier  be  not  exhausted.85 

Under  the  Colorado  constitution,  the  county  commissioners 
have  power  only  to  fix  the  maximum  amount  of  the  rate  to 
be  charged  for  the  use  of  water,  and  are  not  authorized  to 
establish  the  exact  rate  to  be  charged,  or  to  specify  either 

ss  See  statutes,  etc.,  in  Appendix.  The  Colorado  act  providing 
for  the  fixing  of  water  rates  by  the  county  commissioners  (Mills' 
Ann.  St.  §§  2295,  2296)  is  constitutional.  Golden  Canal  Co.  v. 
Bright,  8  Colo.  144,  6  Pac.  142.  In  this  case  Helm,  J.,  said:,  "If 
these  persons  or  corporations  [engaged  in  the  business  of  furnish- 
ing water]  were  entirely  uncontrolled  in  the  matter  of  prices,  it 
requires  no  prophetic  vision  to  see  that  injustice  and  trouble  would 
follow.  If  allowed  to  speculate  upon  that  which  is  properly  a  part 
of  the  public  domain,  and  protected  in  the  possession  thereof,  it 
is  exceedingly  appropriate  that  they  should  be  subjected  to  reason- 
able- regulations  in  connection  therewith." 

s*  Wilson  v.  Perrault  (Idaho,  1898)   54  Pac.  617. 

ss  South  Boulder  &  R.  C.  Ditch  Co.  v.  Marfell,  15  Colo.  302,  25 
Pac.  504. 

(278) 


Ch.  13]  IRRIGATION  COMPANIES.  §   133 

the  time  or  conditions  of  payment,  though  it  seems  that  the 
time  and  conditions  of  payment  are  proper  subjects  for  leg- 
islation.86 

-The  rates  fixed  by  the  board  of  county  commissioners  must 
be  reasonable  and  just.  An  irrigation  company  is  not  sub- 
ject to  such  unreasonable  regulations  as  to  rates  as  would 
prevent  it  from  earning  a  reasonable  profit  on  its  investment, 
and  so  amount  to  a  taking  of  its  property  without  clue  process 
of  law,  and  a  denial  to  it  of  the  equal  protection  of  the  laws. 
And  should  the  rates  fixed  be  so  low  as  to  have  this  effect,  a 
suit  will  lie  in  a  federal  court  to  restrain  the  enforcement  of 
such  rates.87 

It  is  provided  by  the  California  constitution  that  the  use 
of  water  appropriated  for  sale,  rental  or  distribution  is  a 
public  use,  subject  to  the  regulation  and  control  of  the  state; 
and  that  the  rates  of  compensation  to  be  collected  for  the  use 
of  water  supplied  to  any  city,  county  or  town,  or  the  in- 
habitants thereof,  shall  be  annually  fixed  by  the  governing 
board  of  the  city,  county  or  town.88  A  foreign  corporation 
coming  into  the  state  and  acquiring  water  rights  under  the 
constitution  and  laws  thereof  will  not  be  permitted  to  assail 
these  provisions  as  being  contrary  to  the  provisions  of  the 
constitution  of  the  United  States.  It  is  not  precluded,  how- 
ever, from  questioning  the  reasonableness  of  the  rates  estab- 
lished by  the  municipality.89  And  it  is  within  the 
scope  of  judicial  power,  and  a  part  of  judicial  duty, 

ss  Wheeler  v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487. 

ST  San  Joaquin  &  K.  R.  Canal  &  Irr.  Co.  v.  Stanislaus  County, 
90  Fed.  516. 

ss  Const,  art.  14,  §  1. 

so  San  Diego  Land  &  Town  Co,  v.  City  of  National  City,  74 
Fed.  79. 

(279) 


§      133  LAW  OP  IRRIGATION.  [Ch.  13 

to  inquire  whether  rates  so  established  operate  to  de- 
prive the  ditch  owner  of  his  property  without  just  com- 
pensation ;  and  if  the  court  finds  from  the  evidence  that  the 
rates  are  mahifestly  unreasonable,  it  is  its  duty  to  annul 
them.90  The  basis  upon  which  to  compute  the  rates  is  the 
actual  present  value  of  the  property,  and  not  its  original 
cost,  due  regard  being  had  to  the  cost  of  maintenance,  de- 
preciation by  reason  of  wear  and  tear,  and  to  the  rights  of 
the  public.91 

In  Idaho  the  district  court  is  authorized  by  statute  to  de- 
termine, under  all  circumstances,  what  is  a  reasonable  com- 
pensation, and  what  arc  reasonable  terms,  for  the  use  of 
water,  either  annually  or  for  a  term  of  years.02 

In  Colorado  the  statutes  provide  for  no  appeal  from  the 
decision  of  the  county  commissioners  fixing  water  rates.93 
Under  the  California  act,  however,  it  seems  that,  should  the 
rates  fixed  by  the  board  designated  by  the  law  for  this  pur- 
pose be  so  unreasonable  as  to  justify  the  interposition  of 
a  court,  any  party  aggrieved  would  have  his  remedy  in  the 
appropriate  court,  by  which  such  unreasonable  rates  would 
be  annulled  and  the  question  again  referred  to  the  board.94 

Notwithstanding  the  existence  of  a  statute  providing  for 
the  establishment  of  rates  by  the  county  commissioners,  until 
such  rates  are  fixed  in  pursuance  of  law,  an  irrigation  com- 
pany and  consumers  under  its  ditch  are  free  to  make  such 

»oid. 

01  Id.  See,  also,  that  these  elements  should  be  considered, 
Wheeler  v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487;  Wil- 
son v.  Perrault  (Idaho,  1898)  54  Pac.  617. 

»2  Wilterding  v.  Greene  (Idaho,  1896)  45  Pac.  134. 

»3  Golden  Canal  Co.  v.  Bright,  8  Colo.  144,  6  Pac.  142. 

»*Lanning  v.  Osborne,  76  Fed.  319. 
(280) 


Ch.  13]  IRRIGATION  COMPANIES.  §    133 

contracts  as  they  may  see  fit,  and  their  agreements  will  be 
sustained  by  the  courts.95  If  the  carrier  has  a  rate  of  its 
own,  with  which  the  consumer  is  satisfied,  no  necessity  exists 
to  apply  to  the  commissioners  to  fix  a  maximum  rate.96 
Moreover,  the  action  of  the  commissioners  in  fixing  rates 
does  not  prevent  consumers  from  making  special  contracts 
with  the  carrier  regarding  the  rate,  or  from  continuing  under 
pre-existing  agreements.97 

The  provisions  of  the  California  constitution  and  act  of 
1885,  providing  for  the  fixing  of  water  rates  by  the  board  of 
supervisors,  does  not  authorize  such  board  to  fix  such  rates 
where  the  water  is  furnished  exclusively  to  stockholders  of 
the  corporation,  and  not  sold,  rented  or  distributed  to  the 
public  generally.98 

Where  an  irrigation  company  is  authorized  to  charge  a 

95  San  Diego  Flume  Co.  v.  Souther,  90  Fed.  164.  The  California 
act  of  March  12,  1885,  §  5,  provides  that,  until  water  rates  are 
hxed  as  provided  by  law,  the  actual  rates  established  and  collected 
by  the  irrigation  companies,  etc.,  shall  be  deemed  and  accepted 
as  the  legal  rates.  Under  this  section  it  is  held  that  an  irrigation 
company  is  not  estopped  from  raising  its  rates  by  the  fact  that 
before  the  passage  of  the  statute  it  contracted  to  furnish  water 
at  a  certain  rate;  for  persons  who  bought  land  or  otherwise  acted 
or  contracted  with  reference  to  such  rate  must  be  held  to  have 
known  that  the  constitution  conferred  upon  the  legislature  the 
power  and  made  it  its  duty  to  prescribe  the  manner  in  which  such 
rates  should  be  established.  Lanning  v.  Osborne,  76  Fed.  319.  As 
to  suits  by  the  receiver  of  a  water  company  to  establish  his  right 
to  fix  rates,  see  Lanning  v.  Osborne,  79  Fed.  657;  Ward  v.  San 
Diego  Land  &  Town  Co.,  79  Fed.  665. 

as  Wheeler  v.  Northern  Colo.  Irr.  Co.,  10  Colo.  582,  17  Pac.  487. 

97  San  Diego  Flume  Co.  v.  Souther,  90  Fed.  164;  South  Boulder 
&  R.  C.  Ditch  Co.  v.  Marfell,  15  Colo.  302,  25  Pac.  504. 

as  McFadden  v.  Board  Sup'rs,  Los  Angeles  County,  74  Cal.  571, 
16  Pac.  397. 

(281) 


§  134  LAW  OF  IRRIGATION.  [Ch.  13- 

certain  maximum  rate  for  the  carriage  or  use  of  water,  it 
cannot  exact  an  additional  amount  as  a  bonus  or  royalty  as  a 
condition  precedent  to  furnishing  water  to  consumers  under 
its  ditch." 
£    134.    Transfer  of  Stock  in  Irrigation  Companies. 

Some  questions  have  been  raised  as  to  the  rights  of  stock- 
holders in  an  irrigation  company  in  the  water  diverted  by  the 
company,  and  the  effect  of  a  transfer  of  stock  as  carrying  the 
water  right.  In  this  connection  it  should  be  noted  that  Avhere 
an  irrigation  company  is  organized  for  the  purpose  of  supply- 
ing water  to  the  public  generally,  as  in  the  case  of  other  cor- 
porations, a  transfer  of  stock  cannot  operate  to  transfer  the 
company's  property.  Corporate  property  cannot  be  trans- 
ferred by  members  of  the  corporation,  but  only  by  the  corpora- 
tion acting  as  such.  And  in  the  case  of  irrigation  companies, 
the  ownership  of  stock  in  the  corporation  is  essentially  dif- 
ferent from  the  ownership  of  a  prior  right  to  the  use  of 
water  from  the  company's  ditch.  The  ownership  of  the  stock, 
like  the  title  to  other  property,  may  be  acquired  by  descent  or 
purchase ;  but  the  ownership  of  the  prior  right  can  be  acquired 
originally  only  by  the  actual  beneficial  use  of  the  water.  A 
stockholder  who  makes  an  actual  application  of  water  from 
the  company's  ditch  to  beneficial  use  may  thereby  acquire  a 
prior  right  thereto ;  but  his  title  to  the  stock  without  such 
.use  gives  him  no  title  to  the  priority.  He  may  transfer  his 
stock  to  whom  he  will,  but  he  can  transfer  his  priority  only 
to  some  one  who  will  continue  to  use  the  water.100 

99  Sail  Diego  Land  &  Town  Co.  v.  City  of  National  City,  74  Fed. 
79;   Lanning  v.  Osborne,  76  Fed.  319;   Wheeler  v.  Northern  Colo. 
Irr.  Co.,  10  Colo.  582,  17  Pac.  487;  Northern  Colo.  Irr.  Co.  v.  Rich- 
ards, 22  Colo.  450,  45  Pac.  423. 

100  Combs  v.  Agricultural  Ditch  Co.,  17  Colo.  146,  28  Pac.  966. 
(282) 


Ch.  13]  IRRIGATION  COMPANIES.  §   134 

But  where  an  irrigation  company  is  organized  as  a  mutual 
ditch  company  for  the  purpose  of  supplying  water  to  stock- 
holders only,  and  the  corporation  issues  to  consumers  capital 
stock  representing  not  only  the  interest  of  stockholders  in 
the  ditch,  but  also  the  right  to  the  use  of  the  water,  then  a 
transfer  of  such  stock  operates  as  a  transfer  of  both  the  in- 
terest in  the  ditch  and  the  right  to  the  use  of  the  water,  rep- 
resented by  the  stock  transferred.101  Where  the  shares  of 
stock  issued  represent  water  rights,  a  transfer  of  such  stock 
will  carry  the  water  rights  represented  thereby,  and  may 
operate  to  sever  the  water  rights  from  the  land  in  connection 
with  which  they  were  acquired.102 

Shares  of  stock  in  an  irrigation  corporation  are  not  ap- 
purtenant to  the  land  owned  by  the  owner  of  the  shares,  even 
though  such  land  be  irrigated  by  water  from  a  canal  owned 
by  the  corporation.  Such  shares,  therefore,  do  not  pass  with 
the  land  on  execution  sale  thereof,  but  can  be  taken  for  debt, 
under  attachment  or  execution,  only  in  the  manner  provided 
by  law.103  In  Utah,  by  statute,  water  stock  in  an  incorpo- 
rated irrigation  company  is  personal  property,  which  may  be 
transferred  by  assignment  in  writing  and  by  delivery  of  the 
certificate  of  stock.104 

101  Cache  La  Poudre  Irr.  Co.  v.  Larimer  &  Weld  Reservoir  Co., 
25  Colo.  144,  53  Pac.  318.     See,  also,  Spurgeon  v.  Santa  Ana  Val. 
Irr.  Co.,  120  Cal.  71,  52  Pac.  140;  Supply  Ditch  Co.  v.  Elliott,  10  Colo. 
327,  15  Pac.  691. 

102  Openlander  v.  Left  Hand  Ditch  Co.,  18  Colo.  142,  31  Pac.  854. 
los  Wells  v.  Price  (Idaho,  1899)  56  Pac.  266.        See,  also,  Struby- 

Estabrook  Merc.  Co.  v.  Davis,  18  Colo.  93,  31  Pac.  495. 
104  Snyder  v.   Murdock  (Utah,  1899)  59  Pac.  91. 

(283) 


§   135  LAW  OF  IRRIGATION.  [Ch.  14 

CHAPTER  XIV. 

IRRIGATION  DISTRICTS. 

§  135.  Generally. 

136.  Organization  of  District. 

137.  Corporate  Nature  of  Irrigation  Districts. 

138.  Powers  and  Duties  of  Board  of  Directors. 

139.  Issuance  of  Bonds  and  Levy  of  Assessments. 

g    135.    Generally.  ' 

In  several  of  the  arid  states  it  has  been  found  that,  where 
irrigation  is  conducted  by  individual  farmers  or  corporations 
acting  independently,  and  each  seeking  to  promote  his  or  its 
OAvn  interests  alone,  the  best  results  are  not  obtained.  In  or- 
der to  reconcile  the  various  conflicting  interests,  and  to  estab- 
lish a  more  efficient  system  of  irrigation,  statutes  have  been 
passed  in  these  states  providing  for  the  organization  and  gov- 
ernment of  "irrigation  districts,"  which  are  public  corpora- 
tions empowered  to  construct  the  best  possible  system  of  irri- 
gation for  the  lands  embraced  within  their  borders.  The 
best-known  statute  011  the  subject  is  the  California  statute, 
known  as  the  "Wright  Act,"  passed  in  1887.  This  act  has 
been  several  times  amended,  and  was  finally  repealed,  and  a 
new  statute  on  the  subject  passed  in  1897. 1 

Statutes  modeled  011  the  Wright  act  have  been  passed  in 

1  For  the  complete  text  of  the  various  California  statutes  relating 
to  irrigation  districts  from  1872  to  1897,  see  Gen.  Laws  1899,  pp. 
436-548.  The  statutes  are  of  very  great  length,  and  provide  a  most 
elaborate  system  for  the  organization  and  government  of  irriga- 
tion districts,  the  acquisition  and  construction  thereby  of  irriga- 
tion works,  and  the  distribution  of  water  for  irrigation  purposes. 
(284) 


Ch.  14]  IRRIGATION  DISTRICTS.  §   136 

Idaho,2  Kansas,3  Nebraska,4  Nevada5  and  Washington.6  For 
a  time,  a  similar  statute  was  in  force  in  Utah,  but  this  has 
been  repealed.7 

The  constitutionality  of  the  act  providing  for  the  forma- 
tion of  irrigation  districts  has  been  assailed  on  various 
grounds,  but  has  been  uniformly  upheld  by  the  courts.8 

The  remaining  sections  of  this  chapter  will  be  devoted 
mainly  to  an  examination  of  the  California  system. 

£    136.    Organization  of  District. 

Irrigation  districts  are  organized  under  the  statute  now  in 
force  in  California  substantially  as  follows :  A  majority  of 
the  owners  of  lands  susceptible  of  irrigation  from  a  common 
source,  and  by  the  same  system  of  works,  representing  a  ma- 
jority in  value  of  such  lands,  may  propose  the  organization  of 
a  district.  A  petition  praying  for  the  organization  of  the  dis- 
trict is  addressed  to  the  board  of  supervisors  of  the  county  in 

2  Laws  1899,  p.  408,  repealing  the  earlier  act  of  March  9,  1895. 

s  Gen.  St.  1899,  §§  3575-3598. 

4Comp.   St.   1899,   §§   5511-5574. 

The  Nebraska  act  is  copied  in  all  essential  features  from  the 
California  act,  and  its  enactment  must  be  construed  as  a  legisla- 
tive approval  of  the  interpretation  given  it  in  the  latter  state.  Al- 
falfa Irr.  Dist.  v.  Collins,  46  Neb.  411,  64  N.  W.  1086. 

s  Comp.  Laws  1900,  §§  374-423. 

«  Bal.  Code,  §§  4166-4249. 

T  Comp.  Laws  1888,  §§  2403-2427;  Rev.  St.  1898,  §§  1287,  1288; 
Harris  v.  Tarbet  (Utah,  1899)  57  Pac.  33. 

sFallbrook  Irr.  Dist.  v.  Bradley,  164  TJ.  S.  112,  17  Sup.  Ct.  56; 
Herring  v.  Modesto  Irr.  Dist.,  95  Fed.  705;  Turlock  Irr.  Dist.  v. 
Williams,  76  Cal.  360,  18  Pac.  379;  Central  Irr.  Dist.  v.  De  Lappe, 
79  Cal.  351,  21  Pac.  825;  Crall  v.  Poso  Irr.  Dist.,  87  Cal.  140,  26  Pac. 
797;  In  re  Madera  Irr.  Dist.,  92  Cal.  296,  28  Pac.  272,  675,  27  Am. 
St.  Rep.  106;  In  re  Central  Irr.  Dist,  117  Cal.  382,  49  Pac.  354; 
Alfalfa  Irr.  Dist.  v.  Collins,  46  Neb.  411,  64  N.  W.  1086. 

(285) 


§   136  LAW  OF  IRRIGATION.  [Ch.  14 

which  the  lands  within  the  proposed  district,  or  the  greater 
portion  thereof,  are  situated.  The  petition  is  required  to  be 
accompanied  by  a  bond,  to  be  approved  by  the  board  of  su- 
pervisors, binding  the  sureties  thereon  to  pay  all  the  costs  in 
case  the  organization  of  the  district  is  not  effected.  The 
board  of  supervisors  are  required  to  set  a  day  for  the  hearing 
of  the  petition,  and,  if  the  petition  complies  with  the  statu- 
tory requirements,  an  election  is  ordered  to  determine  wheth- 
er or  not  the  proposed  district  shall  be  organized,  and  for  the 
election  of  a  board  of  directors  and  other  officers.  The  elec- 
tion is  conducted  as  nearly  as  practicable  according  to  the 
general  election  laws  of  the  state,  and  only  persons  qualified 
as  electors  under  such  laws  are  entitled  to  vote.  If  at  least 
two-thirds  of  all  the  votes  cast  are  in  favor  of  the  district,  the 
board  shall  declare  the  district  duly  organized  as  such  under 
the  name  designated,  and  the  persons  receiving  the  highest 
number  of  votes  duly  elected  as  officers.  Provision  is  made 
for  contesting  the  validity  of  such  election.9 

Proceedings  for  the  formation  of  irrigation  districts  are  to 
be  liberally  construed,  so  as  to  carry  out  the  purposes  of  the 
law.10 

By  the  act  of  1887,  the  petition  was  required  to  "set  forth 
and  particularly  describe  the  proposed  boundaries"  of  the 
district.11  It  has  been  held  that  this  provision  probably  re- 

9  Act  1897,  §§  1-12;   Gen.  Laws  Gal.  1899,  pp.  462-467.     See  Cen- 
tral Irr.  Dist.  v.  De  Lappe,  79  Cal.  351,  21  Pac.  825;   In  re  Madera 
Irr.  Dist.,  92  Cal.  296,  28  Pac.  272,  675,  27  Am.  St.  Rep.  106;    Di- 
rectors of  Fallbrook  Irr.  Dist.  v.  Abila,  106  Cal.  355,  39  Pac.  794; 
Cullen  v.  Glendora  Water  Co.,  113  Cal.  503,  39  Pac.  769,  45  Pac. 
822,  1047;  In  re  Central  Irr.  Dist,  117  Cal.  382,  49  Pac.  354. 

10  Central  Irr.  Dist.  v.  De  Lappe,  79  Cal.  351,  21  Pac.  825. 

11  The  act  of  1897  provides  that  the  petition  "shall  set  forth  the 
boundaries  of  the   proposed   district,"   etc. 

(286) 


Ch.  14]  IRRIGATION  DISTRICTS.  §   136 

quires  a  description  by  metes  and  bounds,  but  that  a  descrip- 
tion by  metes  and  bounds  that  would  be  sufficient  in  an  or- 
dinary deed  is  a  compliance  with  the  statute.12  The  pro- 
vision does  not  require  that  the  boundaries  shall  be  set  forth 
and  described  with  greater  particularity  than  would  be  neces- 
sary .in  an  act  of  the  legislature  creating  a  political  district  or 
a  municipal  corporation.13 

Where  the  bond  presented  with  the  petition,  although  in- 
formal, is  not  invalid,  and  binds  those  who  have  signed  it,  the 
determination  by  the  board  of  supervisors  of  its  sufficiency 
is  conclusive.14  And  the  board  has  power,  in  case  such  bond 
is  defective,  to  allow  a  new  bond  to  be  filed  before  taking  ac- 
tion on  the  petition.15 

The  board  of  supervisors  has  power,  on  the  final  hearing  of 
the  petition,  to  make  such  changes  in  the  proposed  bound- 
aries of  the  district  to  be  organized  as  may  be  deemed  advis- 
able, and  they  shall  define  and  establish  such  boundaries ; 
but  the  board  shall  not  modify  the  proposed  boundaries  so  as 
to  exclude  from  the  district  any  land  which  is  susceptible  of 
irrigation  from  a  common  source,  and  by  the  same  system 
of  works  applicable  to  the  other  lands  in  such  district;  nor 
shall  any  lands  which  will  not,  in  the  judgment  of  the  board, 
be  benefited  by  irrigation  by  means  of  such  system  of  works, 
be  included  within  the  proposed  district.  Any  person  whose 
lands  are  susceptible  of  irrigation  from  the  same  source  and 

12  Central  Irr.  Dist.  v.  De  Lappe,  79  Cal.  351,  21  Pac.  825.  'See 
Cullen  v.  Glendora  Water  Co.,  113  Cal.  503,  39  Pac.  769,  45  Pac.  822, 
1047. 

is  In  re  Madera  Irr.  Dist,  92  Cal.  296,  28  Pac.  272,  675,  27  Am. 
St.  Rep.  106. 

i*  Id. 

15  Central  Irr.  Dist.  v.  De  Lappe,  79  Cal.  351,  21  Pac.  825. 

(287) 


§  137  LAW  OF  IRRIGATION.  [Ch.  14 

system  of  works  may,  upon  his  application,  in  the  discre- 
tion of  the  board,  have  such  lands  included  within  the  pro- 
posed district.10  The  extent  of  the  district,  as  well  as  the 
lands  to  be  included  therein,  is  left  to  the  determination  and 
discretion  of  the  board  of  supervisors,  and  the  exercise  of 
their  discretion  in  the  matter  cannot  be  reviewed  by  the 
courts.17  The  fact  that  a  town  or  city  is  included  within  the 
boundaries  of  a  district  does  not  invalidate  the  organization 
of  the  district.18  Nor  is  it  any  objection  to  the  validity  of 
the  organization  of  the  district  that  some  of  the  land  includ- 
ed is  public  land.19  Provision  is  made  by  the  statute  for 
changing  the  boundaries  of  districts  already  organized  by  the 
exclusion  or  inclusion  of  lands.20  The  act  provides  for  gen- 
eral elections  of  officers  after  the  organization  of  the  dis- 
trict.21 

£    137.    Corporate  Nature  of  Irrigation  Districts. 

Irrigation  districts  have  been  called  municipal  corpora- 
tions,22 but  this  designation  was  perhaps  not  used  advisedly, 

ic  Act  1897,  §  2. 

IT  Central  Irr.  Dist.  v.  De  Lappe,  79  Gal.  351,  21  Pac.  825;  Board 
of  Directors  Modesto  Irr.  Dist.  v.  Tregea,  88  Gal.  334,  26  Pac.  237; 
In  re  Madera  Irr.  Dist.,  92  Cal.  296,  28  Pac.  272,  675,  27  Am.  St. 
Rep.  106;  Cullen  v.  Glendora  Water  Co*.,  113  Cal.  503,  39  Pac.  769, 
45  Pac.  822,  1047. 

18  Board  of  Directors   Modesto  Irr.  Dist.  v.  Tregea,  88  Cal.  334, 

26  Pac.  237;   In  re  Madera  Irr.  Dist,  92  Cal.  296,  28  Pac.  272,  675, 

27  Am.  St.  Rep.  106. 

i»  Cullen  v.  Glendora  Water  Co..  113  Cal.  503,  39  Pac.  769,  45 
Pac.  822,  1047. 

20  Act  1897,   §§   74-97. 

21  Act  1897,  §§  19-28.     As  to  salaries  of  officers,  see  Mitchell  v. 
Patterson,  120  Cal.  286,  52  Pac.  589. 

22  Herring  v.   Modesto   Irr.   Dist.,   95   Fed.   705. 
(288) 


Ch.  14]  IRRIGATION  DISTRICTS.  §   137 

as  intended  to  distinguish  municipal  from  public  corpora- 
tions. At  any  rate,  it  has  been  expressly  held  that  an  irriga- 
tion district  is  not  a  municipal  corporation,  within  the  mean- 
ing of  a  constitutional  provision  that  uno  county,  city,  town, 
school  district,  or  other  municipal  corporation"  shall  incur  an 
indebtedness  to  an  amount  exceeding  five  per  cent  of  its  tax- 
able property.23 

But  if  not  a  municipal  corporation,  it  is  well  settled  that 
an  irrigation  district  is  a  public  corporation,  having  for  its 
object  the  promotion  of  the  public  welfare,  and  its  officers  are 
public  officers  of  the  state.24  This  will  appear  from  an  ex- 
amination of  the  mode  of  its  organization,  the  purpose  for 
which  it  is  organized,  and  the  powers  conferred  upon  it.25 

23  Board  of  Directors  Middle  Kittitas  Irr.  Dist.  v.  Peterson,  4 
Wash.  147,  29  Pac.  995. 

2-tFallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S.  112,  17  Sup.  Ct.  56; 
Herring  v.  Modesto  Irr.  Dist.,  95  Fed.  705;  Turlock  Irr.  Dist.  v. 
Williams,  76  Cal.  360,  18  Pac.  379;  Central  Irr.  Dist.  v.  De  Lappe, 
79  Cal.  351,  21  Pac.  825;  Crall  v.  Poso  Irr.  Dist,  87  Cal.  140,  26 
Pac.  797;  In  re  Madera  Irr.  Dist,  92  Cal.  296,  28  Pac.  272,  675,  27 
Am.  St.  Rep.  106;  People  v.  Turnbull,  93  Cal.  630,  29  Pac.  224; 
People  v.  Selma  Irr.  Dist,  98  Cal.  206,  32  Pac.  1047;  Quint  v.  Hoff- 
man, 103  Cal.  506,  37  Pac.  514;  Boehmer  v.  Big  Rock  Irr.  Dist, 
117  Cal.  19,  48  Pac.  908;  Perry  v.  Otay  Irr.  Dist,  127  Cal.  565,  60 
Pac.  40;  People  v.  Linda  Vista  Irr.  Dist.  (Cal.,  1900)  61  Pac.  86;  Lin- 
coln &  Dawson  Co.  Irr.  Dist.  v.  McNeal  (Neb.,  1900)  83  N.  W.  847. 

25  in  Re  Madera  Irr.  Dist,  92  Cal.  296,  28  Pac.  272,  675,  in  support 
of  the  proposition  stated  in  the  text,  Harrison,  J.,  said  of  an  irri- 
gation district  organized  under  the  California  act:  "It  can  be  or- 
ganized only  at  the  instance  of  the  board  of  supervisors  of  the 
county, — the  legislative  body  of  one  of  the  constitutional  subdivi- 
sions of  the  state;  its  organization  can  be  effected  only  upon  the 
vote  of  the  qualified  electors  within  its  boundaries;  its  officers  are 
chosen  under  the  sanction  and  with  the  formalities  required  at  all 
public  elections  in  the  state;  *  *  *  and  the  officers,  when 
elected,  being  required  to  execute  official  bonds  to  the  state  of 
California,  approved  by  a  judge  of  the  superior  court.  *  *  * 

(289) 


§   138  LAW  OF  IRRIGATION.  [Ch.  14 

Being  a  public  corporation,  the  validity  of  its  organization 
cannot  be  collaterally  attacked,26  as  in  a  suit  to  enjoin  the 
sale  of  lands  for  assessments,  by  showing  that  the  board  of 
supervisors  acted  without  their  jurisdiction  in  effecting  the 
organization  of  the  district.27  So,  also,  the  irrigation  dis- 
trict cannot  plead  the  illegality  of  its  own  organization  as  a 
defense  to  an  action  on  bonds  issued  by  it.28  Nor  can  such 
corporation  be  dissolved  by  the  courts  for  a  misuser  or  non- 
user  of  its  corporate  powers,  in  the  absence  of  a  law  specially 
conferring  this  power  upon  the  courts.20  But  although  a 
public  or  quasi  public  corporation,  an  irrigation  district  is  not 
clothed  with  the  sovereignty  of  the  state,  and  laches  may  be 
imputed  to  it.30 

£    138.    Powers  and  Duties  of  Board  of  Directors. 

The  statute  provides  for  the  organization  and  meetings  of 
the  board  of  directors.  The  board  of  directors  have  the 
power,  and  it  is  their  duty,  to  manage  and  conduct  the  busi- 
ness and  affairs  of  the  district,  make  and  execute  all  neces- 
sary contracts,  and  employ  and  appoint  such  agents,  officers 
and  employes  as  may  be  required,  and  prescribe  their  duties. 
They  may  enter  upon  any  land  to  make  surveys,  and  may  lo- 

The  property  held  by  the  corporation  is  in  trust  for  the  public, 
and  subject  to  the  control  of  the  state.  Its  officers  are  public 
officers,  chosen  by  the  electors  of  the  district,  and  invested  with 
public  duties.  Its  object  is  for  the  good  of  the  public,  and  to  pro- 
mote the  prosperity  and  welfare  of  the  public." 

-«  Miller  v.  Ferris  Irr.  Dist,  85  Fed.  693,  92  Fed.  263;  People  v. 
Linda  Vista  Irr.  Dist.  (Cal.,  1900)  61  Pac.  86. 

-•'  Quint  v.  Hoffman,  103  Cal.  506,  37  Pac.  514.  See,  also,  Miller 
v.  Perris  Irr.  Dist.,  85  Fed.  693. 

-s  Herring  v.  Modesto  Irr.  Dist.,  95  Fed.  705. 

-»  People  v.  Selma  Irr.  Dist.,  98  Cal.  206,  32  Pac.  1047. 

so  People  v.  Jefferds,  126  Cal.  296,  58  Pac.  704. 

(290) 


Ch.  14]  IRRIGATION  DISTRICTS. 

cate  the  necessary  irrigation  works,  canals,  etc.,  on  any  lands 
which  may  be  deemed  best  for  such  location.  They  may  ac- 
quire, either  by  purchase  or  condemnation,31  or  other  legal 
means,  all  lands  and  water  rights  or  other  property  necessary 
for  the  construction,  supply,  etc.,  of  the  canals  and  other 
works.  They  may  construct  the  necessary  works  for  the  col- 
lection of  water  for  the  district,  and  do  any  and  every  lawful 
act  necessary  to  be  done,  that  sufficient  water  may  be  furnish- 
ed to  each  landowner  in  the  district  for  irrigation  purposes. 
The  board  is  authorized  and  empowered  to  take  conveyances 
or  other  assurances  for  all  property  acquired  by  it  under  the 
act,  in  the  name  of  the  irrigation  district,  to  and  for  the  uses 
and  purposes  named  in  the  act.  It  is  their  duty  to  establish 
equitable  by-laws,  rules  and  regulations  for  the  distribution 
and  use  of  water  among  the  landowners,  and  they  have  power 
generally  to  perform  all  such  acts  as  may  be  necessary  to 
fully  carry  out  the  purposes  of  the  act.32 

The  statute  provides  that  the  board  of  directors  shall  be  au- 
thorized and  empowered  to  institute  and  maintain  any  and  all 
actions  and  proceedings,  suits  at  law  or  in  equity,  necessary 
or  proper  in  order  to  fully  carry  out  the  provisions  of  the  act, 
or  to  enforce,  maintain,  protect  or  preserve  any  and  all  rights, 
privileges  and  immunities  created  by  the  act,  or  acquired  in 
pursuance  thereof.  And  in  all  courts,  actions,  suits  or  pro- 
ceedings, the  board  may  sue,  appear  and  defend  in  person  or 
by  attorneys,  and  in  the  name  of  the  irrigation  district.33  Un- 
der these  provisions  it  is  held  that  an  irrigation  district  may 
be  sued,  the  language  employed  being  quite  as  effective  to  sub- 
si  As  to  the  condemnation  of  land  for  a  right  of  way  for  a  pipe 
line,  see  Rialto  Irr.  Dist.  v.  Brandon,  103  Cal.  384,  37  Pac.  484. 

32  Act  189J,  §§  13-16. 

33  Act  1897,  §  15. 

(291) 


§   139  LAW  OF  IRRIGATION.  [Ch.  14 

ject  the  district  to  an  action  as  the  more  common  expression 
"to  sue  and  be  sued."34 

Under  the  provisions  of  the  Utah  act  of  1884,  in  respect  to 
irrigation  districts,  after  a  district  has  been  once  organized, 
the  boundaries  determined,  and  the  trustees  elected,  it  be- 
comes their  duty  to  assume  jurisdiction  of  the  whole  district. 
They  cannot  arbitrarily  assume  the  management  of  part  of 
the  district  and  reject  another  part;  and  mandamus  will  lie 
to  compel  them  to  perform  their  duty  under  the  law.35 

:'    139.    Issuance  of  Bonds  and  Levy  of  Assessments. 

For  the  purpose  of  constructing  necessary  irrigating  canals 
and  works,  and  acquiring  the  necessary  property  and  rights 
therefor,  and  otherwise  carrying  out  the  provisions  of  the 
statute,  the  board  of  directors  of  irrigation  districts  are  re- 
quired, as  soon  as  practicable  after  the  organization  of  the 
district,  and  whenever  necessary  thereafter,  to  determine  the 
amount  of  money  necessary  to  be  raised.  Then,  upon  the  pe- 
tition of  a  majority  of  the  landowners  in  the  district,  an  elec- 
tion shall  be  ordered,  and  the  question  of  issuing  bonds  be 
submitted  to  the  electors  of  the  district.  If  a  majority  of  the 
votes  are  cast  in  favor  of  issuing  bonds,  the  board  are  re- 
quired to  cause  bonds  of  the  stated  amount  to  be  issued.36  Be- 
fore calling  for  an  election  on  the  question  of  issuing  bonds, 

34  Boehmer  v.  Big  Rock  Irr.  Dist,  117  Cal.  19,  48  Pac.  908;  Hewitt 
v.  San  Jacinto  &  P.  V.  Irr.  Dist,  124  Cal.  186,  56  Pac.  893.  See 
this  case  as  to  liability  of  irrigation  district  for  failure  to  furnish 
water. 

as  Harris  v.  Tarbet  (Utah,  1899)  57  Pac.  33.  This  act  has  been 
repealed,  but  its  provisions  remain  in  force  as  to  all  districts  organ- 
ized thereunder  prior  to  the  repeal. 

so  Act  1897,  §§  30-32.  See  Hughson  v.  Crane,  115  Cal.  404,  47  Pac. 
120.  See  as  to  issue  of  bonds  and  use  of  the  same  for  acquiring 

(292) 


Ch.  14]  IRRIGATION  DISTRICTS.  §.  139 

the  board  of  directors  must  make  the  estimate,  as  required  by 
the  statute,  of  the  amount  of  money  necessary  to  be  raised, 
and  to  this  end  they  must  have  adopted  some  plan  for  the  ac- 
quisition and  distribution  of  water.  There  can  be  no  esti- 
mate where  no  such  definite  plan  has  been  adopted.37 

The  bonds  issued  and  the  interest  thereon  are  to  be  .paid  by 
revenue  derived  from  an  annual  assessment  upon  the  real 
property  of  the  district,  all  of  which  property  is  liable  to  such 
assessment.  Additional  assessments  may  be  levied  to  raise 
money  for  the  completion  of  the  plan  of  canal  and  works 
adopted,  in  case  the  money  derived  from  the  issue  of  bonds 
be  insufficient  or  unavailable,  the  question  of  levying  such  ad- 
ditional assessments  being  also  submitted  to  a  vote  of  the  elec- 
tors of  the  district.  Property  assessed  may  be  sold,  subject 
to  redemption,  for  the  nonpayment  of  assessments  levied.38 
An  assessment  levied  for  any  purpose  without  being  author- 
ized by  a  vote  of  the  electors  of  the  district  is  illegal,  and  its 
collection  cannot  be  enforced.39 

and  constructing  irrigation  works  under  the  Nebraska  statutes, 
Baltes  v.  Farmers'  Irr.  Dist.  (Neb.,  1900)  83  N.  W.  83.  As  to 
action  on  bonds,  see  Shepard  v.  Tulare  Irr.  Dist.,  94  Fed.  1;  Herring 
v.  Modesto  Irr.  Dist,  95  Fed.  705. 

ST  Cullen  v.  Glendora  Water  Co.,  113  Cal.  503,  39  Pac.  769,  45 
Pac.  822,  1047. 

ss  See,  generally,  as  to  assessments,  Fallbrook  Irr.  Dist.  v.  Brad- 
ley, 164  U.  S.  112,  17  Sup.  Ct.  56;  Turlock  Irr.  Dist.  v.  Williams,  76 
Cal.  360,  18  Pac.  379;  Quint  v.  Hoffman,  103  Cal.  506,  37  Pac.  514; 
City  of  San  Diego  v.  Linda  Vista  Irr.  Dist,  108  Cal.  189,  41  Pac.  291; 
Cooper  v.  Miller,  113  Cal.  238,  45  Pac.  325;  Hughson  v.  Crane,  115 
Cal.  404,  47  Pac.  120;  Lahman  v.  Hatch,  124  Cal.  1,  56  Pac.  621; 
Perry  v.  Otay  Irr.  Dist,  127  Cal.  565,  60  Pac.  40;  State  v.  Brown, 
19  Wash.  383,  53  Pac.  548. 

soTregear  v.  Owens,  94  Cal.  317,  29  Pac.  643;  Woodruff  v.  Perry, 
103  Cal.  611,  37  Pac.  526. 

(293) 


§  139  LAW  OF  IRRIGATION.  [Ch.   14 

Irrigation  districts  being  public  corporations,  and  the  valid- 
ity of  their  organization  being  therefore  not  subject  to  collat- 
eral attack,40  it  is  immaterial,  so  far  as  the  validity  of  an  as- 
sessment levied  by  a  district  is  concerned,  whether  such  dis- 
trict be  a  corporation  de  jure  or  de  facto.41 

For  the  security  of  investors,  and  to  enable  irrigation  dis- 
tricts to  dispose  of  their  bonds  on  advantageous  terms,  an  act 
supplemental  to  the  Wright  act,  and  known  as  the  "Confirma- 
tion Act,"  was  passed  in  1889,  authorizing  the  board  of  direc- 
tors to  commence  a  special  proceeding  in  the  superior  court 
of  the  county  in  which  the  lands  of  the  district,  or  some  por- 
tion thereof,  were  situated,  in  and  by  which  the  proceedings 
of  the  board  and  of  the  district,  providing  for  the  issue  and 
sale  of  bonds,  might  be  judicially  examined,  approved  and 
-confirmed.42  By  the  act  of  1897  it  is  provided  that  the  board 
of  directors  may,  at  any  time  after  the  issue  of  any  bonds,  or 
the  levy  of  any  assessment,  bring  an  action  in  the  superior 
court  of  the  county  in  which  the  office  of  the  board  is  located, 
to  determine  the  validity  of  any  such  bonds,  or  such  levy  of 
assessments.  If  no  such  proceeding  is  brought  by  the  board, 
such  action  may  be  brought  by  any  district  assessment  payer 
within  thirty  days  after  the  levy  of  any  assessment,  or  the  is- 

•to  See  ante,  §  137. 

41  Quint  v.  Hoffman,  103  Cal.  506,  37  Pac.  514. 

42  St.  1889,  p.  212.     As  to  proceedings  under  this  act,  see  Crall 
v.  Poso  Irr.  Dist,  87  Cal.  140,  26  Pac.  797;  Board  of  Directors  Mo- 
desto Irr.  Dist.  v.  Tregea,  88  Cal.  334,  26  Pac.  237;   Id.,  164  U.  S. 
179,  17  Sup.  Ct.  52;  In  re  Madera  Irr.  Dist,  92  Cal.  296,  28  Pac.  272, 
675,  27  Am.  St.  Rep.  106;  Fallbrook  Irr.  Dist.  v.  Abila,  106  Cal.  355, 
39  Pac.  794;   Cullen  v.  Glendora  Water  Co.,  113  Cal.  503,  39  Pac. 
769,  45  Pac.  822,  1047;  In  re  Central  Irr.  Dist.,  117  Cal.  382,  49  Pac. 
354;  People  v.  Linda  Vista  Irr.  Dist.  (Cal.,  1900)  61  Pac.  86. 


Ch.  14]  IRRIGATION  DISTRICTS.  §  139, 

sue  of  any  bonds.43  The  judgment  of  the  court  having  juris- 
diction of  the  confirmation  proceedings  as  to  the  validity  of 
the  organization  of  an  irrigation  district,  and  other  questions 
involved  in  the  case,  is  conclusive  as  against  the  world  until 
reversed  on  appeal  or  set  aside  by  some  direct  proceeding  in- 
stituted for  that  purpose.44  The  construction  of  the  federal 
courts  of  the  confirmation  act,  however,  is  not  binding  on  the 
state  courts.45 

« Act  1897,  §§  68-73. 

<*  Miller  v.  Ferris  Irr.  Dist,  85  Fed.  693,  99  Fed.  143;  Crall  r. 
Poso  Irr.  Dist.,  87  Cal.  140,  26  Pac.  797;  Rialto  Irr.  Dist.  v.  Brandon, 
103  Cal.  384,  37  Pac.  484;  People  v.  Linda  Vista  Irr.  Dist.  (Cal., 
1900)  61  Pac.  86.  In  the  case  last  cited  it  was  held  a  judgment 
confirming  the  validity  of  the  organization  of  an  irrigation  district 
was  binding  on  the  state. 

«  People  v.  Linda  Vista  Irr.  Dist.  (Cal.,  1900)  61  Pac.  86. 

(295) 


§   140  LAW  OF  IRRIGATION.  [Ch.  15 


CHAPTER  XV. 

THE  DESERT  LAND  ACTS. 

§  140.     The  Acts  of  Congress. 
141.     The  State  Statutes. 

§    140.    The  Acts  of  Congress. 

Congress  has  passed  several  acts  providing  for  the  reclama- 
tion and  sale  of  desert  lands  belonging  to  the  public  domain. 
The  first  statute  on  the  subject  is  the  act  of  March  3,  1877.1 
This  act  provides  "that  it  shall  be  lawful  for  any  citizen  of 
the  United  States,  or  any  person  of  requisite  age  'who  may 
be  entitled  to  become  a  citizen,  and  who  has  filed  his  declara- 
tion to  become  such'  and  upon  payment  of  twenty-five  cents 
per  acre — to  file  a  declaration  under  oath  with  the  register 
and  receiver  of  the  land  district  in  which  any  desert  land  is 
situated,  that  he  intends  to  reclaim  a  tract  of  desert  land  not 
exceeding  one  section,  by  conducting  water  upon  the  same, 
within  a  period  of  three  years  thereafter,  provided,  however, 
that  the  right  to  the  use  of  water  by  the  person  so  conducting 
the  same,  on  or  to  any  tract  of  desert  land  of  six  hundred 
and  forty  acres  shall  depend  upon  bona  fide  prior  appropria- 
tion; and  such  right  shall  not  exceed  the  amount  of  water 
actually  appropriated,  and  necessarily  used  for  the  purpose 
of  irrigation  and  reclamation ;  and  all  surplus  water  over  and 
above  such  actual  appropriation  and  use,  together  with  the 
water  of  all,  lakes,  rivers  and  other  sources  of  water  supply 
upon  the  public  lands  and  not  navigable,  shall  remain  and  be 
held  free  for  the  appropriation  and  use  of  the  public  for  irri- 

il9  Stat.  377;   1  Supp.  Rev.  St.  U.  S.  p.  137. 
(296) 


Ch.  15]  THE  DESERT  LAND  ACTS.  §   140 

gation,  mining  and  manufacturing  purposes  subject  to  exist- 
ing rights.  Said  declaration  shall  describe  particularly  said 
section  of  land  if  surveyed,  and,  if  unsurveyed,  shall  describe 
the  same  as  nearly  as  possible  without  a  survey.  At  any 
time  within  the  period  of  three  years  after  filing  said  decla- 
ration, upon  making  satisfactory  proof  to  the  register  and  re- 
ceiver of  the  reclamation  of  said  tract  of  land  in  the  manner 
aforesaid,  and  upon  the  payment  to  the  receiver  of  the  addi- 
tional sum  of  one  dollar  per  acre  for  a  tract  of  land  not  ex- 
ceeding six  hundred  and  forty  acres  to  any  one  person,  a 
patent  for  the  same  shall  be  issued  to  him.  Provided,  that 
no  person  shall  be  permitted  to  enter  more  than  one  tract  of 
land  and  not  to  exceed  six  hundred  and  forty  acres  which 
shall  be  in  compact  form." 

Sec.  2.  "That  all  lands  exclusive  of  timber  lands  and  min- 
eral lands  which  will  not,  without  irrigation,  produce  some 
agricultural  crop,  shall  be  deemed  desert  lands,  within  the 
meaning  of  this  act,  which  fact  shall  be  ascertained  by  proof 
of  two  or  more  credible  witnesses  under  oath,  whose  affidavits 
shall  be  filed  in  the  land  office  in  which  said  tract  of  land 
may  be  situated." 

Sec.  3.  "That  this  act  shall  only  apply  to  and  take  effect 
in  the  states  of  California,  Oregon  and  Nevada,  and  the 
territories  of  Washington,  Idaho,  Montana,  Utah.  Wyoming, 
Arizona,  !N~ew  Mexico  and  Dakota,  and  the  determination  of 
what  may  be  considered  desert  land  shall  be  subject  to  the 
decision  and  regulation  of  the  commissioner  of  the  general 
land  office." 

This  act  was  amended  by  an  act  approved  March  3,  1801,2 
and  the  following  sections  added: 

226  Stat.  1095;   1  Supp.  Rev.  St.  U.  S.  pp.  940,  941.     On  July  26, 

(297) 


§   140  LAW  OF  IRRIGATION.  [Ch.  15 

Sec.  4.  "That  at  the  time  of  filing  the  declaration  herein- 
before required  the  party  shall  also  file  a  map  of  said  land, 
which  shall  exhibit  a  plan  showing  the  mode  of  contemplated 
irrigation,  and  which  plan  shall  be  sufficient  to  thoroughly 
irrigate  and  reclaim  said  land,  and  prepare  it  to  raise  ordi- 
nary agricultural  crops,  and  shall  also  show  the  source  of  the 
water  to  be  used  for  irrigation  and  reclamation.  Persons  en- 
tering or  proposing  to  enter  separate  sections,  or  fractional 
parts  of  sections,  of  desert  lands  may  associate  together  in 
the  construction  of  canals  and  ditches  for  irrigating  and  re- 
claiming all  of  said  tracts,  and  may  file  a  joint  map  or  maps 
showing  their  plan  of  internal  improvements." 

Sec.  5.  "That  no  land  shall  be  patented  to  any  person  under 
this  act  unless  he  or  his  assignors  shall  have  expended  in  the 
necessary  irrigation,  reclamation,  and  cultivation  thereof,  by 
means  of  main  canals  and  branch  ditches,  and  in  permanent 
improvements  upon  the  land,  and  in  the  purchase  of  water 
rights  for  the  irrigation  of  the  same,  at  least  three  dollars 
per  acre  of  the  whole  tract  reclaimed  and  patented  in  the 
manner  following:  Within  one  year  after  making  entry  for 
such  tract  of  desert  land  as  aforesaid  the  party  so  entering 
shall  expend  not  less  than  one  dollar  per  acre  for  the  pur- 
poses aforesaid ;  and  he  shall  in  like  manner  expend  the  sum 
of  one  dollar  per  acre  during  the  second  and  also  during  the 
third  year  thereafter,  until  the  full  sum  of  three  dollars  per 

1894,  an  act  was  approved  extending  the  time  for  making  final  proof 
and  payment  for  all  lands  located  under  the  homestead  and  desert 
land  laws,  proof  and  payment  of  which  had  not  yet  been  made,  for 
a  period  of  one  year  from  the  time  proof  and  payment  would  have 
become  due  under  existing  laws.  2  Supp.  Rev.  St.  U.  S.  p.  205.  The 
time  was  again  extended  by  the  act  of  August  4,  1894  (2  Supp.  Rev. 
St.  U.  S.  p.  224),  which  act  also  relieves  from  expenditure  during 
the  year  1894. 

(298) 


Ch.  15]  THE  DESERT  LAND  ACTS.  §   140 

acre  is  so  expended.  Said  party  shall  file  during  each  year 
with  the  register  proof,  by  the  affidavits  of  two  or  more  cred- 
ible witnesses,  that  the  full  sum  of  one  dollar  per  acre  has 
been  expended  in  such  necessary  improvements  during  such 
year,  and  the  manner  in  which  expended,  and  at  the  expira- 
tion of  the  third  year  a  map  or  plan  showing  the  character 
and  extent  of  such  improvements.  If  any  party  who  has 
made  such  application  shall  fail  during  any  year  to  file  the 
testimony  aforesaid  the  lands  shall  revert  to  the  United 
States,  and  the  twenty-five  cents  advanced  payment  shall  be 
forfeited  to  the  United  States,  and  the  entry  shall  be  can- 
celed. Nothing  herein  contained  shall  prevent  a  claimant 
from  making  his  final  entry  and  receiving  his  patent  at  an 
earlier  date  than  hereinbefore  prescribed,  provided  that  he 
then  makes  the  required  proof  of  reclamation  to  the  aggregate 
extent  of  three  dollars  per  acre:  Provided,  that  proof  be 
further  required  of  the  cultivation  of  one-eighth  of  the- land." 

Sec.  6.  This  section  provides  that  existing  claims  may  be 
perfected  under  the  act  of  1877,  or  under  the  new  act. 

Sec.  7.  "That  at  any  time  after  filing  the  declaration,  and 
within  a  period  of  four  years  thereafter,  upon  making  satis- 
factory proof  to  the  register  and  the  receiver  of  the  reclama- 
tion and  cultivation  of  said  land  to  the  extent  and  cost  and 
in  the  manner  aforesaid,  and  substantially  in  accordance  with 
the  plans  herein  provided  for,  and  that  he  or  she  is  a  citizen 
of  the  United  States,  and  upon  payment  to  the  receiver  of 
the  additional  sum  of  one  dollar  per  acre  for  said  land,  a 
patent  shall  issue  therefor  to  the  applicant  or  his  assigns ;  but 
no  person  or  association  of  persons  shall  hold  by  assignment 
or  otherwise  prior  to  the  issue  of  patent,  more  than  three 
hundred  and  twenty  acres  of  such  arid  or  desert  lands,  but 

(299) 


§   140  LAW  OF  IRRIGATION.  [Ch.  15 

this  section  shall  not  apply  to  entries  made  or  initiated  prior 
to  the  approval  of  this  act.  Provided,  however,  that  addi- 
tional proofs  may  be  required  at  any  time  within  the 
period  prescribed  by  law,  and  that  the  claims  or  entries 
made  under  this  or  any  preceding  act  shall  be  subject  to  con- 
test, as  provided  by  the  law,  relating  to  homestead  cases,  for 
illegal  inception,  abandonment,  or  failure  to  comply  with  the 
requirements  of  law,  and  upon  satisfactory  proof  thereof 
shall  be  canceled,  and  the  lands,  and  moneys  paid  therefor, 
shall  be  forfeited  to  the  United  States." 

Sec.  8.  This  section  extends  the  provisions  of  this  and  the 
former  act  to  the  state  of  Colorado,  as  well  as  the  states 
originally  named,  and  provides  that  "no  person  shall  be  en- 
titled to  make  entry  of  desert  land  except  he  be  a  resident 
citizen  of  the  state  or  territory  in  which  the  land  sought  to 
be  entered  is  located." 

By  the  "Carey  Act"  of  August  18,  1894,3  it  was  provided 
by  congress  "that  to  aid  the  public  land  states  in  the  reclama- 
tion of  the  desert  lands  therein,  and  the  settlement,  cultiva- 
tion and  sale  thereof  in  small  tracts  to  actual  settlers,  the 
secretary  of  the  interior,  with  the  approval  of  the  president, 
be,  and  hereby  is,  authorized  and  empowered,  upon  proper 
application  of  the  state,  to  contract  and  agree,  from  time  to 
time,  with  each  of  the  states  in  which  there  may  be  situated 
desert  lands  as  denned  by  the"  desert  land  act  of  March  3, 
1877,  and  the  amendatory  act  of  March  3,  1891,  "binding  the 
United  States  to  donate,  grant  and  patent  to  the  state  free 
of  cost  for  survey  or  price  such  desert  lands,  not  exceeding 
one  million  acres  in  each  state,  as  the  state  may  cause  to  be 
irrigated,  reclaimed,  occupied,  and  not  less  than  twenty  acres 

328  Stat.  472;   2  Supp.  Rev.  St.  U.  S.  p.  259. 
(300) 


Ch.  15]  THE  DESERT  LAND  ACTS.  §   140 

of  each,  one  hundred  and  sixty  acre  tract  cultivated  by  actual 
settlers,  within  ten  years  next  after  the  passage  of  this  act, 
as  thoroughly  as  is  required  of  citizens  who  may  enter  under 
the  said  desert  land  law." 

"Before  the  application  of  any  state  is  allowed  or  any  con- 
tract or  agreement  is  executed  or  any  segregation  of 
any  of  the  land  upon  the  public  domain  is  ordered  by 
the  secretary  of  the  interior,  the  state  shall  file  a  map 
of  the  said  land  proposed  to  be  irrigated  which  shall  exhibit 
a  plan  showing  the  mode  of  the  contemplated  irrigation  and 
which  plan  shall  be  sufficient  to  thoroughly  irrigate  and  re- 
claim said  land  and  prepare  it  to  raise  ordinary  agricultural 
crops  and  shall  also  show  the  source  of  the  water  to  be  used 
for  irrigation  and  reclamation,  and  the  secretary  of  the  in- 
terior may  make  necessary  regulations  for  the  reservation  of 
the  lands  applied  for  by  the  states  to  date  from  the  date  of 
the  filing  of  the  map  and  plan  of  irrigation,  but  such  reserva- 
tion shall  be  of  no  force  whatever  if  such  map  and  plan  of 
irrigation  shall  not  be  approved.  That  any  state  contracting 
under  this  section  is  hereby  authorized  to  make  all  necessary 
contracts  to  cause  the  said  lands  to  be  reclaimed,  and  to  in- 
duce their  settlement  and  cultivation  in  accordance  with  and 
subject  to  the  provisions  of  this  section;  but  the  state  shall 
not  be  authorized  to  lease  any  of  said  lands  or  to  use  or  dispose 
of  the  same  in  any  way  whatever,  except  to  secure  their  recla- 
mation, cultivation  and  settlement." 

"As  fast  as  any  state  may  furnish  satisfactory  proof  ac- 
cording to  such  rules  and  regulations  as  may  be  prescribed  by 
the  secretary  of  the  interior,  that  any  of  said  lands  are  irri- 
gated, reclaimed  and  occupied  by  actual  settlers,  patents  shall 
be  issued  to  the  state  or  its  assigns  for  said  lands  so  reclaimed 

(301) 


§   140  LAW  OF  IRRIGATION.  [Ch.  15 

and  settled:  Provided,  that  said  states  shall  not  sell  or  dis- 
pose of  more  than  one  hundred  and  sixty  acres  of  said  lands 
to  any  one  person,  and  any  surplus  of  money  derived  by  any 
state  from  the  sale  of  said  lands  in  excess  of  the  cost  of  their 
reclamation,  shall  be  held  as  a  trust  fund  for  and  be  applied 
to  the  reclamation  of  other  desert  lands  in  such  state.  That 
to  enable  the  secretary  of  the  interior  to  examine  any  of  the 
lands  that  may  be  selected  under  the  provisions  of  this  sec- 
tion, there  is  hereby  appropriated  out  of  any  money  in  the 
treasury,  not  otherwise  appropriated,  one  thousand  dollars." 
By  an  amendment  to  this  act,  passed  June  11,  189 6,4  it  was 
provided  "that  under  any  law  heretofore  or  hereafter  enacted 
by  any  state,  providing  for  the  reclamation  of  arid  lands,  in 
pursuance  and  acceptance  of  the  terms  of  the  grant  made  in" 
the  above  act,  "a  lien  or  liens  is  hereby  authorized  to  be  creat- 
ed by  the  state  to  which  such  lands  are  granted  and  by  no 
other  authority  whatever,  and  when  created  shall  be  valid 
on  and  against  the  separate  legal  subdivisions  of  land  re- 
claimed, for  the  actual  cost  and  necessary  expenses  of  recla- 
mation and  reasonable  interest  thereon  from  the  date  of  rec- 
lamation until  disposed  of  to  actual  settlers;  and  when  an 
ample  supply  of  water  is  actually  furnished  in  a  substantial 
ditch  or  canal,  or  by  artesian  wells  or  reservoirs,  to  reclaim  a 
particular  tract  or  tracts  of  such  lands,  then  patents  shall 
issue  for  the  same  to  such  state  without  regard  to  settlement 
of  cultivation :  Provided,  that  in  no  event,  in  no  contingency, 
and  under  no  circumstances  shall  the  United  States  be  in 
any  manner  directly  or  indirectly  liable  for  any  amount 
of  any  such  lien  or  liability,  in  whole  or  in  part." 

*29  Stat.  434;  2  Supp.  Rev.  St.  U.  S.  p.  525. 
(302) 


Ch.  15]          THE  DESERT  LAND  ACTS.  §  141 

§    141.    The  State  Statutes. 

In  several  states,  statutes  have  been  passed  accepting  the 
conditional  grant  of  arid  land  made  by  the  Carey  act. 

Soon  after  the  passage  of  the  act,  a  statute  was  passed  by 
the  legislature  of  Montana  for  the  purpose  of  enabling  the 
state  to  accept  the  offer  of  the  United  States,  and  of  reclaim- 
ing the  arid  lands  within  the  state  in  accordance  with  the 
act  of  congress.5  The  statute  provides  for  the  creation  of 
the  "State  Arid  Land  Grant  Commission,"  to  consist  of  five 
members,  to  be  appointed  by  the  governor.  Each  commis- 
sioner shall  hold  office  for  six  years,  and  shall  take  an  oath 
of  office.  The  powers  of  the  commission  are  extensive.  They 
are  given  full  power  and  authority  to  take  all  steps  necessary 
to  comply  with  the  conditions  of  the  act  of  congress,  to  the 
end  that  the  state  may  receive  the  full  benefit  and  advantage 
accruing  to  it  from  and  by  the  terms  of  that  act.  It  seems 
that  the  only  limitation  imposed  by  the  statute  on  the  extent 
to  which  the  commission  can  go  in  their  efforts  to  reclaim  the 
arid  lands  donated  to  the  state  is  that  the  steps  taken,  means 
used  or  contracts  entered  into  shall  be  for  the  benefit  of  the 
state.6 

This  statute,  by  which  the  federal  grant  is  accepted,  and  by 
which  it  is  expressly  provided  that  no  debts  or  liabilities  other 
than  for  limited  incidental  expenses  of  the  commission  can 
ever  be  created  against  the  state  under  its  provisions,  is  a 
valid  legislative  act,  and  such  acceptance  is  valid.  The  state 
becomes  the  agent  of  the  United  States  to  make  effective  the 

5  Pol.  Code  1895,  §§  3530-3547. 

6  State  v.  Marshall,  20  Mont.  510,  52  Pac.  268.     See  this  case  for 
an  extended  examination  of  the  powers  of  the  commission  as  to  the 
lands  that  may  be  selected,  issue  of  bonds,  etc. 

(303) 


§   141  LAW  OF  IRRIGATION.  [Ch.  15 

offer  of  the  latter  to  part  with  its  desert  lands  to  the  state  or 
its  assigns,  provided  the  state  can  reclaim  such  lands,  and 
induce  the  actual  settlement  and  cultivation  thereof.  The  state 
holds  the  legal  title  only  for  the  benefit  of  real  owners,  actual 
settlers  upon  the  land,  irrigating  and  cultivating  the  same. 
The  benefit  to  the  state  lies  in  the  advantages  of  having  such 
actual  farmers.  The  state  has  the  power  to  make  contracts 
with  individuals  or  corporations  for  placing  the  water  upon 
the  land,  and  may  make  contracts  to  sell  with  actual  settlers. 
The  state  may  thus  earn  the  land  for  the  benefit  of  actual 
settlers,  provided  it  complies  with  the  requirements  of  the 
acts  of  congress ;  but  until  it  does  so  earn  it,  there  is  no  trans- 
fer of  title,  and  the  state  is  expressly  limited  in  its  control 
and  use  of  the  land,  and  cannot  dispose  of  the  same  in  the 
manner  provided  by  the  constitution  and  laws  of  the  state 
relative  to  public  lands  generally.7 

A  member  of  the  commission  is  a  state  oificer,  with  com- 
pensation fixed  by  law,  and  his  claim  for  compensation  is 
therefore  not  the  subject  of  examination  by  the  state  board 
of  examiners.8 

Statutes  similar  to  that  of  Montana  accepting  the  congres- 
sional grant  have  been  passed  in  Colorado,9  Idaho,10  Washing- 
ton n  and  Wyoming.12  In  Colorado,  Idaho  and  Wyoming 
the  selection,  management  and  disposal  of  the  land  is  vested 
in  the  state  board  of  land  commissioners.  In  Washington 
this  duty  devolves  upon  the  ''commissioner  of  irrigation,"  but 

i  State  v.  Wright,  17  Mont.  565,  44  Pac.  89. 

s  Id. 

o  3  Mills'  Ann.  St.  §§  3662a-3662x. 

10  Laws  1895,  p.  219;   Laws  1899,  p.  284. 

11  Bal.  Code,  §§  2085-2108. 

12  Rev.  St.  1899,  §§  934-967. 

(304) 


Ch.  15  J  THE  DESERT  LAND  ACTS.  §   141 

as  no  provision  is  made  by  law  for  the  appointment  of 
any  such  officer,  it  may  be  a  question  whether  the  act  is  not 
inoperative,  unless  the  state  land  commissioner  be  considered 
as  ex  officio  also  commissioner  of  irrigation. 

(305) 


APPENDIX, 


PREFATORY  NOTE. 


In  the  following  pages  are  given  the  acts  of  congress  and 
the  constitutional  and  statutory  provisions  of  the  states  and 
territories  on  the  subject  of  irrigation.  The  more  impor- 
tant statutes  are  given  in  full;  statutes  of  less  interest  and 
importance  being  stated  in  substance  or  merely  described.  It 
will  be  found  that  many  of  the .  states  have  drawn  largely 
from  the  statutes  of  California  and  Colorado,  and  for  econo- 
my of  space  in  some  cases,  statutes  so  copied  have  not  been 
set  out,  but  their  provisions  are  indicated  by  reference  to 
the  model  statute.  Statutes  already  set  out  in  the  text 
of  this  work  are  not  repeated  in  the  Appendix.  In  few  cases 
have  the  statutes  as  published  been  arranged  according 
to  any  very  logical  system,  and  in  the  present  work  the  order 
of  the  sections  as  published  has  generally  not  been  followed, 
but  a  rough  classification  has  been  made. 


TABLE  OF  CONTENTS. 


Acts  of  Congress  311 

Arizona 317 

California 330 

Colorado     341 

Idaho  373 

Kansas 377 

Montana 387 

Nebraska , 397 

Nevada  408 

New  Mexico    412 

North  Dakota   415 

Oregon    419 

South  Dakota  431 

Texas    434 

Utah   447 

Washington    454 

Wyoming   467 


ACTS  OF  CONGRESS. 

GENERAL  PROVISIONS. 

[Priorities  Recognized.] 

Rev.  St.  TJ.  S.  §  2339.  Whenever,  by  priority  of  posses- 
sion, rights  to  the  use  of  water  for  mining,  agricultural,  man- 
ufacturing or  other  purposes  have  vested  and  accrued,  and  the 
same  are  recognized  and  acknowledged  by  the  local  customs, 
laws  and  the  decisions  of  courts,  the  possessors  and  owners  of 
such  vested  rights  shall  be  maintained  and  protected  in  the 
same;  and  the  right  of  way  for  the  construction  of  ditches 
and  canals  for  the  purposes  herein  specified  is  acknowledged 
and  confirmed ;  but  whenever  any  person,  in  the  construction 
of  any  ditch  or  canal,  injures  or  damages  the  possession  of 
any  settler  on  the  public  domain,  the  party  committing  such 
injury  or  damage  shall  be  liable  to  the  party  injured  for  such 
injury  or  damage.  [Act  July  26,  1866.] 

[Patents,  etc.,  Subject  to  Existing  Rights.] 

§  2340.  All  patents  granted,  or  pre-emptions  or  home- 
steads allowed,  shall  be  subject  to  any  vested  and  accrued 
water  rights,  or  rights  to  ditches  and  reservoirs  used  in  con- 
nection with  such  water  rights,  as  may  have  been  acquired 
under  or  recognized  by  the  preceding  section.  [Act  July  9, 
1870.] 

INVESTIGATION,  SURVEY,  ETC.,  OK  ARID  LANDS. 
The  act  of  October  2,  1888,  makes  appropriation  "for  the 


312  LAW  OF  IRRIGATION. 

purpose  of  investigating  the  extent  to  which  the  arid  region 
of  the  United  States  can  be  redeemed  by  irrigation,  and  the 
segegration  of  the  irrigable  lands  in  such  arid  region,  and  for 
the  selection  of  sites  for  reservoirs  and  other  hydraulic 
works  necessary  for  the  storage  and  utilization  of  water  for 
irrigation,  and  the  prevention  of  floods  and  overflows,  * 
the  work  to  be  performed  by  the  geological  survey,  under  the 
direction  of  the  secretary  of  the  interior.  *  ":  *  And  all  the 
lands  which  may  hereafter  be  designated  or  selected  by 
such  United  States  surveys  for  sites  for  reservoirs,  ditches  or 
canals  for  irrigation  purposes,  and  all  the  lands  made  sus- 
ceptible of  irrigation  by  such  reservoirs,  ditches  or  canals, 
are  from  this  time  henceforth  hereby  reserved  from  sale  as 
the  property  of  the  United  States,  and  shall  not  be 
subject,  after  the  passage  of  this  act,  to  entry,  settlement  or 
occupation  until  further  provided  by  law :  provided,  that  the 
president  may  at  any  time,  in  his  discretion,  by  proclamation, 
open  any  portion  or  all  of  the  lands  reserved  by  this  provision 
to  settlement  under  the  homestead  laws."  [25  Stat.  505,  par. 
4;  1  Supp.  Kev.  St.  U.  S.  626.] 

The  act  of  March  2,  1889,  provides  for  further  appropria- 
tion for  the  purposes  above  stated,  and  that  "the  director  of 
the  geological  survey,  under  the  supervision  of  the  secretary 
of  the  interior,  shall  make  a  report  to  congress  on  the  first 
Monday  in  December  of  each  year,  showing  in  detail  how 
the  said  money  has  been  expended,  the  amount  used  for 
actual  survey  and  engineer  work  in  the  field  in  locating 
sites  for  reservoirs,  and  an  itemized  account  of  the  expendi- 
tures under  this  and  any  future  appropriation."  [25  Stat. 
939,  par.  4;  1  Supp.  Rev.  St.  U.  S.  698.] 


APPENDIX.  313 

The  provision  of  the  act  of  October  2,  1888,  as  to  reserva- 
tion of  land  from  sale,  was  repealed  August  30,  1890,  and  it 
was  provided  that  "all  entries  made  or  claims  initiated  in 
good  faith,  and  valid  but  for  said  act,  shall  be  recognized 
and  may  be  perfected  in  the  same  manner  as  if  said  law 
had  not  been  enacted,  except  that  reservoir  sites  heretofore 
located  or  selected  shall  remain  segregated  and  reserved  from 
entry  or  settlement,  as  provided  by  said  act,  until  otherwise 
provided  by  law,  and  reservoir  sites  hereafter  located  or 
selected  on  public  lands  shall  in  like  manner  be  reserved  from 
the  date  of  the  location  or  selection  thereof.  '  Provid- 

ed, that  in  all  patents  for  lands  hereafter  taken  up  under  any 
of  the  land  laws  of  the  United  States,  or  on  entries  or  claims 
validated  by  this  act,  west  of  the  one  hundredth  meridian,  it 
shall  be  expressed  that  there  is  reserved  from  the  lands  in 
said  patent  described  a  right  of  way  thereon  for  ditches  or 
canals  constructed  by  the  authority  of  the  United  States." 
[26  Stat,  371,  par.  4;  1  Supp.  Rev.  St.  U.  S.  791,  792.] 

It  was  provided  by  the  act  of  March  3,  1891,  that  reservoir 
sites  located  or  selected  and  to  be  located  and  selected  under 
the  provisions  of  the  act  of  October  2,  1888,  and  amendments 
thereto,  shall  be  restricted  to  and  shall  contain  only  so  much 
land  as  is  actually  necessary  for  the  construction  and  main- 
tenance of  reservoirs;  excluding  so  far  as  practicable  lands 
occupied  by  actual  settlers  at  the  date  of  the  location  of  said 
reservoirs.  [26  Stat.  1095,  §  17 ;  1  Supp.  Rev.  St.  U.  S. 
945.] 

RIGHT  OK  WAY  FOR  CANALS,  DITCHES  AND  RESERVOIRS. 

[Act  March  3,  1891 ;  26  Stat.  1095 ;  1  Supp.  Rev.  St.  U.  S. 

946.] 
§   18.     That  the  right  of  way  through  the  public  lands  and 


314  LAW  OF  IRRIGATION. 

reservations  of  the  United  States  is  hereby  granted  to  any  ca- 
nal or  ditch  company  formed  for  the  purpose  of  irrigation, 
and  duly  organized  under  the  laws  of  any  state  or  territory,, 
which  shall  have  filed  or  may  hereafter  file,  with  the  secretary 
of  the  interior  a  copy  of  its  articles  of  incorporation,  and  due 
proofs  of  its  organization  under  the  same,  to  the  extent 
01  the  ground  occupied  by  the  water  of  the  reservoir  and 
of  the  canal  Mid  its  laterals,  and  fifty  feet  on  each  side  of 
the  marginal  limits  thereof;  also  the  right  to  take  from  the 
public  lands  adjacent  to  the  line  of  the  canal  or  ditch,  ma- 
terial, earth  and  stone  necessary  for  the  construction  of  such 
canal  or  ditch :  provided,  that  no  such  right  of  way  shall  be  so 
located  as  to  interfere  with  the  proper  occupation  by  the 
government  of  any  such  reservation,  and  all  maps  of  location 
shall  be  subject  to  the  approval  of  the  department  of  the 
government  having  jurisdiction  of  such  reservation ;  and  the 
privilege  herein  granted  shall  not  be  construed  to  interfere 
with  the  control  of  water  for  irrigation  and  other  purposes 
under  authority  of  the  respective  states  or  territories. 

§  19.  That  any  canal  or  ditch  company  desiring  to  secure 
the  benefits  of  this  act  shall,  within  twelve  months  after  the 
location  of  ten  miles  of  its  canal,  if  the  same  be  upon  survey- 
ed lands,  and,  if  upon  unsurveyed  lands,  within  twelve 
months  after  the  survey  thereof  by  the  United  States,  file 
with  the  register  of  the  land  office  for  the  district  where  such 
land  is  located  a  map  of  its  canal  or  ditch  and  reservoir; 
and  upon  the  approval  thereof  by  the  secretary  of  the  in- 
terior, the  same  shall  be  noted  upon  the  plats  in  said  office, 
and  thereafter  all  such  lands  over  which  rights  of  way  shall 
pass  shall  be  disposed  of  subject  to  such  rights  of  way. 

Whenever  any  person  or  corporation,  in  the  construction 
of  any  canal,  ditch  or  reservoir,  injures  or  'damages  the  pos- 


APPENDIX.  315 

session  of  any  settler  on  the  public  domain,  the  party  com- 
mitting such  injury  or  damage  shall  be  liable  to  the  party 
injured  for  such  injury  or  damage. 

§  20.  That  the  provisions  of  this  act  shall  apply  to  all  ca- 
nals, ditches  or  reservoirs  heretofore  or  hereafter  constructed, 
whether  constructed  by  corporations,  individuals  or  associ- 
ation of  individuals,  on  the  filing  of  the  certificates  and  maps 
herein  provided  for.  If  such  ditch,  canal  or  reservoir  has 
been  or  shall  be  constructed  by  an  individual  or  association 
of  individuals,  it  shall  be  sufficient  for  such  individual  or  asso- 
ciation of  individuals  to  file  with  the  secretary  of  the  inte- 
rior, and  with  the  register  of  the  land  office  where  such  land 
is  located,  a  map  of  the  line  of  such  canal,  ditch  or  reservoir, 
as  in  case  of  a  corporation,  with  the  name  of  the  individual 
owner  or  owners  thereof,  together  with  the  articles  of  associa- 
tion, if  any  there  be.  Plats  heretofore  filed  shall  have  the 
benefits  of  this  act  from  the  date  of  their  filing,  as  though 
filed  under  it:  provided,  that  if  any  section  of  said  canal  or 
ditch  shall  not  be  completed  within  five  years  after  the  loca- 
tion of  said  section,  the  rights  herein  granted  shall  be  for- 
feited as  to  any  uncompleted  section  of  said  canal,  ditch  or 
reservoir,  to  the  extent  that  the  same  is  not  completed  at  the 
date  of  the  forfeiture. 

§  21.  That  nothing  in  this  act  shall  authorize  such  canal  or 
ditch  company  to  occupy  such  right  of  way  except  for  the 
purpose  of  said  canal  or  ditch,  and  then  only  so  far  as  may 
be  necessary  for  the  construction,  maintenance  and  care  of 
said  canal  or  ditch. 

[Grant  of  Right  of  Way  by  Settler.] 

Substitute  for  Kev.  St.  II.  S.  §  2288.  Any  bona  fide  set- 
tler under  the  pre-emption,  homestead  or  other  settlement 


316  LAW  OF  IRRIGATION. 

law  shall  have  the  right  to  transfer,  by  warranty  against  his 
own  acts,  any  portion  of  his  claim  for  church,  cemetery  or 
school  purposes,  or  for  the  right  of  way  of  railroads,  canals, 
reservoirs  or  ditches  for  irrigation  or  drainage  across  it ;  and 
the  transfer  for  such  public  purposes  shall  in  no  way  vitiate 
the  right  to  complete  and  perfect  the  title  to  his  claim.  [Act 
March  3,  1891 ;  26  Stat.  1095,  §  3 ;  1  Supp.  Rev.  St.  U.  S. 
942,  §  3.] 

[Reservoir  Sites.] 

That  all  reservoir  sites  reserved  or  to  be  reserved  shall  be 
open  to  use  and  occupation  under  the  right-of-way  act  of 
March  third,  eighteen  hundred  and  ninety-one.  And  any 
state  is  hereby  authorized  to  improve  and  occupy  such  reser- 
voir sites  to  the  same  extent  as  an  individual  or  private  cor- 
poration, under  such  rules  and  regulations  as  the  secretary 
of  the  interior  may  prescribe :  provided,  that  the  charges  for 
water  coming  in  whole  or  part  from  reservoir  sites  used  or 
occupied  under  the  provisions  of  this  act  shall  always  be 
subject  to  the  control  and  regulation  of  the  respective  states 
and  territories  in  which  said  reservoirs  are  in  whole  or  part 
situate.  [Act  Feb.  26,  1897 ;  29  Stat.  599 ;  2  Supp.  Rev. 
St.  U.  S.  563.] 

DESERT  LAND  ACTS. 

For  these  acts,  see  the  text,  chapter  15,  §  140. 


ARIZONA. 

The  statutes  of  Arizona  consist  of  the  earlier  laws  relating 
to  acequias  peculiar  to  Arizona  and  New  Mexico,  and  several 
acts  on  the  subject  of  appropriation,  etc.,  modeled  upon  the 
statutes  of  California  and  other  states. 

[Eeferences  to  Rev.  St.  1887.] 

GENERAL    PROVISIONS. 

[Common  Law  Abolished.] 

§  3198.  The  common-law  doctrine  of  riparian  water 
rights  shall  not  obtain  or  be  of  any  force  or  effect  in  this 
territory. 

[Streams  Public  Property.] 

§  3199.  All  rivers,  creeks  and  streams  of  running  water 
in  the  territory  of  Arizona  are  hereby  declared  public,  and 
applicable  to  the  purposes  of  irrigation  and  mining,  as  here- 
inafter provided. 

§  2863.  All  streams,  lakes  and  ponds  of  water  capable  of 
being  used  for  the  purposes  of  navigation  or  irrigation  are 
hereby  declared  to  be  public  property;  and  no  individual 
or  corporation  shall  have  the  right  to  appropriate  them  ex- 
clusively to  their  own  private  use,  except  under  such  equit- 
able regulations  and  restrictions  as  the  legislature  shall  pro- 
vide for  that  purpose.  [Bill  of  Rights,  §  22.] 

[Taxation  of  Ditches.! 
Water  ditches  constructed  for  mining,  manufacturing  or 


318  LAW  OP  IRRIGATION. 

irrigating  purposes  *  *  *  must  be  assessed  the  same  as  real 
estate  by  the  assessor  of  the  county  at  a  rate  per  mile  for  that 
portion  of  such  property  as  lies  within  his  county,  and  must 
be  by  him  listed  as  a  whole,  without  separating  the  land 
and  franchise  and  improvements,  either  in  the  description  or 
valuation  of  the  same :  provided,  that  private  irrigating  ditch- 
es, wholly  owned  by  the  parties  using  the  water  therefrom  on 
their  own  lands,  shall  be  exempt  from  assessment  and  taxation 
except  in  so  far  as  such  ditches  enhance  the  value  of  the  land 
upon  which  they  conduct  the  water.  [Act  March  21,  1889  ; 
Acts  1889,  p.  40.  See,  also,  Act  March  3,  1899 ;  Acts  1899, 
p.  20.] 

IRRIGATING  CANALS  AND  ACEQUIAS. 

[Vested  Rights  Protected.] 

§  3200.  All  rights  in  acequias  or  irrigating  canals  here- 
tofore established  shall  not  be  disturbed,  nor  shall  the 
course  of  the  acequias  be  changed  without  the  consent  of 
the  proprietors  of  such  established  rights. 

[Eight  to  Construct  Acequias  aud  Appropriate  Water.] 

§  3201.  All  the  inhabitants  of  this  territory  who  own  or 
possess  arable  and  irrigable  lands  shall  have  the  right  to  con- 
struct public  or  private  acequias,  and  obtain  the  necessary 
water  for  the  same  from  any  convenient  river,  creek  or 
stream  of  running  water. 

[Damages  for  Construction  of  Acequias.] 

§  3202.  Whenever  such  public  or  private  acequias  shall 
necessarily  run  through  the  lands  of  any  private  individuals 
not  benefited  by  such  acequias,  the  damages  resulting  to  such 


APPENDIX.  319 

private  individuals,  on  the  application  of  the  party  interest- 
ed, shall  be  assessed  by  the  probate  judge  of  the  proper 
county  in  a  summary  manner. 

[Obstruction  of  Irrigation  Prohibited.] 

§  3210.  In  case  a  community  or  people  desire  to  construct 
an  acequia  in  any  part  of  this  territory,  and  the  persons 
desiring  to  construct  the  same  are  the  owners  or  proprietors 
of  the  land  upon  which  they  design  constucting  the  said 
acequia,  no  one  shall  be  bound  to  pay  damages  for  such  land, 
as  all  persons  interested  in  the  construction  of  said  acequia 
are  to  be  benefited  thereby. 

§  3203.  ISTo  inhabitant  of  this  territory  shall  have  the 
right  to  erect  any  .dam,  or  build  a  mill  or  place 
any  machinery,  or  open  any  sluice,  or  make  any 
dyke,  except  such  as  are  used  for  mining  purposes  or  the 
reduction  of  metals,  as  provided  for  in  sections  six  and  seven 
of  this  chapter  ([sections  3004,  3005],  that  may  impede  or 
obstruct  the  irrigation  of  any  lands  or  fields,  as  the  right  to 
irrigate  the  fields  and  arable  lands  shall  be  preferable  to  all 
others;  and  the  justices  of  the  peace  of  the  respective  pre- 
cincts shall  hear  and  determine  the  question  relative  to  all 
such  obstructions  in  a  summary  manner,  and  cause  the  re- 
moval of  the  same  by  order  directed  to  the  constable  of  the 
precinct  or  sheriff  of  the  county,  who  shall  proceed  to  exe- 
cute the  same  without  delay. 

[Damage  from  Mining  Works.] 

§  3204.  Where  reduction  works  or  other  mining  appara- 
tus shall  be  placed  upon  lands  previously  held  for  agricultur- 
al purposes,  the  person  or  persons  so  holding  such  lands  shall 
be  entitled  to  remuneration  from  the  person  or  persons  erect- 


320  LAW  OF  IRRIGATION. 

ing  or  owning  said  reduction  works  or  mining  apparatus.  The 
amount  of  remuneration  shall  be  adjudged  by  three  or  five 
disinterested  persons,  or  by  the  probate  judge,  as  the  parties 
interested  shall  agree,  and  in  case  such  agreement  cannot 
be  made,  then  the  party  injured  may  bring  suit  for  damages. 

[Exclusive  Eight  of  Water  Appropriated.] 

§  3205.  When  any  ditch  or  acequia  shall  be  taken  out  for 
agricultural  purposes,  the  person  or  persons  so  taking  out 
such  ditch  or  acequia  shall  have  the  exclusive  right  to  the 
water,  or  so  much  thereof  as  shall  be  necessary  for  said  pur- 
poses, and  if  at  any  time  the  water  so  required  shall  be  taken 
for  mining  operations,  the  person  or  persons  owning  said 
water  shall  be  entitled  to  damages,  to  be  assessed  in  the  man- 
ner provided  in  section  six  of  this  chapter.  [Section  3204.] 

[Priority  of  Rights.] 

§  3215.  During  years  when  a  scarcity  of  water  shall  ex- 
ist, owners  of  fields  shall  have  precedence  of  the  water  for 
-irrigation,  according  to  the  dates  of  their  respective  titles 
or  their  occupation  of  the  lands,  either  by  themselves  or  their 
grantors.  The  oldest  titles  shall  have  precedence  always. 

[Private  Acequia.] 

§  3225.  Any  person  owning  lands  which  may  include  a 
spring  or  stream  of  running  water,  or  owning  lands  upon  a 
river  where  there  is  not  population  sufficient  to  form  a  public 
acequia,  may  construct  a  private  acequia  for  his  own  uses, 
subject  to  his  own  regulations,  provided  that  it  does  not  in- 
terfere with  the  rights  of  others. 

[Ownership  of  Trees  on  Banks  of  Acequia.] 

§   3224.  All  plants  and  trees  of  any  description  growing 


APPENDIX.  321 

on  the  banks  of  any  acequia  shall  belong  to  the  owners  of 
the  land  through  which  said  acequia  may  run. 

[Customs  of  Sonora.  I 

§  3223.  The  regulations  of  acequias  which  have  been 
worked  according  to  the  laws  and  customs  of  Sonora,  and  the 
usages  of  the  people  of  Arizona,  shall  remain  as  they  were 
made  and  used  up  to  this  day. 

[Election  of  Overseers  of  Acequias.] 

§§  3211,  3212.  These  sections  provide  for  the  election 
of  overseers  of  public  acequias  by  the  owners  of  lands  irri- 
gated by  such  acequias. 

[Pay  of  Overseers.] 

§  3213.  The  pay  and  perquisites  of  said  overseers  shall 
be  determined  by  a  majority  of  the  owners  and  proprietors  of 
the  lands  irrigated  by  said  acequias,  and  paid  by  them. 

[Duties  of  Overseers.] 

§  3214.  It  shall  be  the  duty  of  the  overseers  to  superin- 
tend the  opening,  excavations  and  repairs  of  said  acequias ;  to 
apportion  the  number  of  laborers  furnished  by  the  owners 
and  proprietors;  to  regulate  them  according  to  the  quantity 
of  land  to  be  irrigated  by  each  one  from  said  acequia ;  to  dis- 
tribute and  apportion  the  water  in  proportion  to  the  quantity 
to  which  each  one  is  entitled,  according  to  the  land  culti- 
vated by  him;  and,  in  making  such  apportionment,  he  shall 
take  into  consideration  the  nature  of  the  seed  sown  or  plant- 
ed, the  crops  and  plants  cultivated ;  and  to  conduct  and  carry 
on  such  distribution  with  justice  and  impartiality. 

[Malfeasance  or  Nonfeasance  in  Office.] 

§  3217.  This  section  prescribes  a  penalty  for  malfeasance 


322  LAW  OF  IRRIGATION. 

or  nonfeasance  in  office  by  an  overseer,  and  for  his  removal 
on  a  second  conviction. 

§  3218.  This  section  provides  for  the  filling  of  vacancies 
caused  by  such  removal. 

[Duty  to  Labor  on  Public  Acequias.j 

§  3207.  All  owners  and  proprietors  of  arable  and  irriga- 
ble land  bordering  on,  or  irrigable  by,  any  public  acequia, 
shall  labor  on  such  public  acequia,  whether  such  owners  or 
proprietors  cultivate  the  land  or  not. 

§  3208.  All  persons  interested  in  a  public  acequia,  wheth- 
er owners  or  lessees  of  land,  shall  labor  thereon  in  proportion 
to  the  amount  of  land  owned  or  held  by  them,  and  which 
may  be  irrigated  or  subject  to  irrigation. 

§  3216.  It  shall  be  the  duty  of  each  of  the  owners  and 
proprietors  to  furnish  the  number  of  laborers  required  by 
the  overseer,  at  the  time  and  place  he  may  designate,  for  the 
purposes  mentioned  in  the  foregoing  section  [3215  (  ?)]  and 
for  the  time  he  may  deem  necessary. 

§  3219.  If  any  owner  or  proprietor  of  land  irrigated 
by  such  acequia  shall  neglect  or  refuse  to  furnish  the  number 
of  laborers  required  by  the  overseer,  as  required  in  the  18th 
section  of  this  chapter  [section  3216],  after  having  been  duly 
notified  by  the  overseer,  he  shall  be  fined  for  each  offense  in  a 
sum  not  exceeding  ten  dollars,  for  the  benefit  of  said  acequia, 
which  shall  be  recovered  by  the  overseer  before  any  justice 
of  the  peace  of  the  county ;  and,  in  such  cases,  the  over- 
seer shall  be  a  competent  witness  to  prove  the  offense,  or  any 
fact  that  may  serve  to  constitute  the  same. 

[Bypaths  Prohibited.] 

§   3206.  All  bypaths  or  footpaths   across   any  cultivated 


APPENDIX.  323 

fields  are  prohibited,  under  penalty  of  a  fine  not  to  exceed 
ten  dollars,  for  the  benefit  of  the  public  acequia,  to  be  assess- 
ed in  a  summary  manner  by  the  justice  of  the  peace  of  the 
precinct ;  and  if  the  person  so  offending  shall  not  have  where- 
with to  pay  the  fine,  he  shall  be  adjudged  and  sentenced  to 
work  ten  days  on  the  public  acequia. 

[Animals  to  be  Kept  under  Shepherd.] 

§  3209.  It  being  impracticable  to  properly  inclose  the 
fields  in  this  territory,  all  animals  shall  be  kept  under  a  shep- 
herd, so  that  no  injury  may  result  to  the  fields ;  and  if  any 
damage  should  result,  it  shall  be  paid  by  the  owners  of  the 
animals  causing  the  same,  to  be  assessed  by  the  justice  of 
the  peace  of  the  precinct  in  a  summary  manner,  and  paid  to 
the  person  or  persons  whose  fields  may  have  been  damaged. 

[Duty  to  Cpnstruct  Crossings  when  Ditch  Crosses  Highway.] 

§§  3227-3230.  These  sections  make  it  the  duty  of  ditch 
owners  to  construct  and  maintain  suitable  crossings  wherever 
their  ditches  cross  public  highways  or  roads,  and  provide  a 
penalty  for  failure  to  do  so. 

THE  APPROPRIATION  OF  WATER. 

[Eight  to  Appropriate  Water.] 

§  1.  Any  person  or  persons,  company  or  corporation,  shall 
have  the  right  to  appropriate  any  of  the  unappropriated  wat- 
ers, or  the  surplus  of  flood  waters,  in  this  territory  for  deliv- 
ery to  consumers,  rental,  milling,  irrigation,  mechanical,  do- 
mestic, stock  or  any  other  beneficial  purpose,  and  such  person 
or  persons,  company  or  corporation,  for  the  purpose  of  making 
such  appropriation  of  waters  as  herein  specified,  shall  have 
the  right  to  construct  and  maintain  reservoirs,  dams,  canals, 


324  LAW  OF  IRRIGATION. 

ditches,  flumes,  and  any  and  all  other  necessary  waterways. 
And  the  person  or  persons,  company  or  corporation,  first 
appropriating  water  for  the  purposes  herein  mentioned  shall 
always  have  the  better  right  to  the  samo.  [Act  April  13, 
1893;  Acts  1893,  p.  119.] 

[Duty  of  Appropriators  as  to  Notice,  etc.] 

§  2.  Every  person  or  persons,  company  or  corporation,  who 
shall  desire  to  appropriate  any  of  the  waters  of  this  territory 
for  the  uses  and  purposes  mentioned  in  section  1  of  this  act 
shall  first  post  at  the  place  of  diversion  on  the  stream  or 
streams,  as  the  case  may  be,  a  notice  of  his,  their  or  its  ap- 
propriation of  the  amount  of  water  by  it  or  them  appropri- 
ated, and  that  they  intend  to  build  and  maintain  a  dam 
at  a  certain  place,  in  said  notice  to  be  designated,  and  in- 
case of  storage  of  water  by  reservoir,  that  they  intend  to 
construct  and  maintain  a  reservoir  at  a  place  to 'be  in  said 
notice  stated,  and  that  they  intend  to  construct  and  maintain 
a  canal  or  canals,  as  the  case  may  be,  from  the  point  of  di- 
version of  said  water  to  some  terminal  point,  to  be  mentioned 
in  said  notice,  a  copy  of  which  shall  be  filed  and  recorded  in 
the  office  of  the  county  recorder,  in  which  said  dam,  reservoir, 
and  canal  is  contemplated  to  be  constructed,  and  if  said  canal 
runs  through  more  than  one  county,  then  such  notices  shall 
be  filed  and  recorded  in  each  county  through  which  said  canal 
is  to  be  constructed,  and  a  copy  of  said  notice  shall  also  be 
filed  and  recorded  in  the  office  of  the  secretary  of  the  terri- 
tory. That  said  person  or  persons,  company  or  corporation, 
after  posting  and  filing  their  notice  as  herein  provided,  shall, 
within  a  reasonable  time  thereafter,  construct  their  dam  or 
dams,  reservoir  or  reservoirs,  canal  or  canals,  the  case  may 
be,  and  shall,  after  such  construction,  use  reasonable  diligence 


APPENDIX.  325 

to  maintain  the  same  for  the  purposes  in  such  notices  specified, 
and  on  failure,  within  a  reasonable  time  after  posting  and 
filing  of  such  notice  or  notices  as  herein  provided,  to  construct 
such  reservoir,  dam  or  canal,  as  in  such  notice  specified,  or  to 
use  reasonable  diligence,  after  such  construction,  to  maintain 
the  same,  shall  be  held  to  work  a  forfeiture  of  such  right  to 
the  water  or  waters  attempted  to  be  appropriated.  [Act 
April  13,  1893;  Acts  1893,  p.  119.] 

THE  STORAGE  OF  WATER. 

§  1.  That  whenever  storage  reservoirs  shall  be  constructed 
in  the  territory  of  Arizona,  and  water  stored  therein  for  sub- 
sequent distribution  for  irrigation  or  other  useful  purposes 
in  times  of  shortage  of  water,  that  the  owners  of  such  reser- 
voirs, and  the  water  stored  therein,  shall  have  the  right  to 
make  use  of  the  natural  channels  of  streams  in  this  territory 
to  conduct  said  waters  to  the  place  or  places  where  they 
shall  desire  to  use  said  waters,  or  have  them  used,  and  to 
divert  the  same  from  said  natural  channels  at  such  places  as 
shall  be  most  convenient  for  said  purposes. 

§  2.  That  in  the  event  that  the  use  of  the  waters  which 
naturally  flow  in  said  channels  shall  have  been  previously 
appropriated  by  others,  who  have  acquired  the  prior  right  to 
the  use  of  them,  then,  and  in  such  case,  the  owners  of  such 
reservoirs  shall  nevertheless  have  the  right  to  make  use  of 
said  natural  channels  without  diminishing  the  quantity  of 
water  which  naturally  flows  therein,  and  the  use  of  which 
shall  have  been  appropriated  by  others  as  aforesaid. 

In  cases  where  the  parties  interested  cannot  agree  upon  the 
division  of  the  water  turned  into  any  natural  channel  from 
any  storage  reservoir  from  the  water  naturally  flowing  there- 
in, and  the  use  of  which  shall  have  been  previously  appro- 


326  LAW  OF  IRRIGATION. 

priated  by  others,  and  if  there  be  any  difficulty  in  ascertain- 
ing the  several  quantities  to  the  use  of  which  each  party  shall 
be  entitled,  then  all  the  waters  flowing  in  any  natural  chan- 
nel shall  be  divided  and  distributed  between  the  parties  in 
interest  in  the  manner  following,  to  wit :  There  shall  be  ascer- 
tained the  quantity  of  water  which  shall  flow  into  said  natural 
channel  from  the  storage  reservoir,  and  from  that  quantity 
there  shall  be  deducted  one-half  of  one  per  centum  for  each 
one  mile  of  length  of  the  natural  channel  through  which  said 
water  shall  flow  before  being  diverted  therefrom,  and  the 
owners  of  storage  reservoirs,  and  those  acting  by  their  per- 
mission, shall  have  the  right  to  divert  from  the  natural 
channels  the  quantity  of  water  which  shall  flow  into  the  nat- 
ural channel  from  the  storage  reservoir,  after  deducting 
therefrom  said  per  centum  thereof,  and  said  prior  appropria- 
tors  of  the  water  naturally  flowing  in  said  natural  channels 
shall  have  the  right  to  the  use  of  all  the  remainder.  [Act 
March  22,  1893;  Acts  1893,  p.  151.] 

IRRIGATION  COMPANIES. 

[Ditch  Company  not  to  Sell  Water  Beyond  Capacity  of  Canal.] 

§  1.  All  corporations,  associations,  or  individuals  owning, 
managing,  or  controlling  any  canals,  irrigating  ditches, 
flumes,  pipe  lines  or  other  means  for  conveying  water  from 
any  public  stream  in  this  territory,  or  to  the  lands  of  occu- 
pants, for  the  purpose  of  selling,  hiring  or  letting  the  same  to 
such  occupants  for  pay  or  hire,  shall  not  sell,  hire  or  let  more 
water  than  said  canals,  ditches,  flumes  or  pipe  lines  may  be 
estimated  to  carry  at  any  one  time,  whether  such  contract  be 
made  for  measured,  time  or  acreage  quantity. 


APPENDIX.  327 

[Duty  to  Keep  Ditch  in  Repair— Liability  for  Failure  to  Furnish 
Water.] 

§  2.  This  section  provides  that  such  persons,  associations 
or  corporations  shall  at  all  times  keep  their  ditches,  etc.,  in 
good  repair  and  condition,  so  as  to  carry  the  full  amount  of 
water  that  such  persons,  etc.,  have  contracted  to  carry  and 
deliver,  and  that  a  failure  to  deliver  the  quantity  of  water 
contracted  for  (when  there  be  sufficient  in  the  stream  or 
head)  shall  make  such  persons,  etc.,  liable  for  all  damages  to 
the  parties  buying,  hiring  or  renting  water  from  said  car- 
riers. 

[Repair  of  Ditches,  etc.,  by  Consumers.] 

§  3.  This  section  provides  that  when  the  carrier  shall 
permit  its  ditches,  etc.,  to  get  out  of  repair  or  reduced  in 
capacity,  so  that  they  will  not  carry  the  amount  of  water 
contracted  to  be  delivered  to  consumers,  and  shall  fail 
within  a  reasonable  time  to  repair,  cleanse  or  restore  the 
same,  then  the  consumers  may  do  so,  subject  to  certain  re- 
strictions, and  the  cost  of  such  repairs,  etc.,  shall  be  a  lien 
on  the  canals  or  other  works.  [Laws  1893,  p.  132.] 

MISCELLANEOUS  PROVISIONS. 

[Repair  of  Lateral  Ditches.] 

It  is  provided  that  any  person,  firm  or  association  own- 
ing an  interest  in  common  with  another  in  any  lateral  ditch 
constructed  and  used  for  irrigating  or  other  purpose  shall 
have  the  right  to  widen,  deepen,  border  up  or  extend  such 
lateral  ditch  by  paying  to  his  or  their  associate  or  associates, 
and  to  the  owners  of  the  land  through  which  said  lateral 
passes,  just  compensation  for  damages.  A  lateral  ditch  is 
defined  to  be  a  private  ditch  leading  out  of  a  main  ditch 


328  LAW  OF  IRRIGATION. 

or  any  of  its  branches  taken  from  a  river  or  original  source 
of  water  supply.      [Laws  1889,  p.  42.] 

[Opening  Fences  to  Repair  Ditches.] 

It  is  provided  that  it  shall  be  lawful  to  open  any  fence 
in  order  to  repair  any  public  ditch  whenever  it  shall  be 
necessary  to  use  a  team  or  wagon  in  repair  of  same,  with- 
out the  consent  of  the  owner  of  said  fence:  provided,  how- 
ever, that  the  party  or  parties  so  opening  the  fence  shall 
close  it  again,  and  shall  be  liable  for  all  damages  that  may 
occur  by  reason  of  such  opening  and  entry.  [Laws  1893, 
p.  30.] 

[Interfering  with  Acequia.  etc.] 

§  3220.  This  section  provides  a  penalty  for  interfering 
with,  impeding  or  obstructing  acequias,  or  unlawfully  using 
water  therefrom.  See,  also,  sections  3221,  3222,  and  Pen. 
Code,  §  841. 

[Various  Offenses.] 

The  following  are  declared  to  be  misdemeanors:  Fail- 
ing to  construct,  maintain  or  repair  bridges  or  crossings  over 
acequias  or  canals  when  required  by  law  to  do  so  [Pen.  Code, 
§  920]  ;  allowing  water  to  injuriously  overflow  highways 
[section  921]  ;  unlawfully  using  water  from  any  acequia  or 
irrigating  canal  without  the  proper  gates  required  by  law 
[section  922]  ;  unlawfully  constructing  or  maintaining  any 
dam,  or  in  any  way  unlawfully  impeding  the  free  passage  of 
the  water  in  any  irrigating  canal  or  acequia  [section  923]  ; 
failing  to  remove  from  the  banks  of  irrigating  canals  all  cock- 
leburrs  and  sunflowers  growing  thereon  before  they  ripen  or 
mature  their  seed  [Laws  1893,  p.  23]  ;  for  any  person  using 


APPENDIX.  329 


water  during  the  season  when  there  is  a  scarcity  of  water 
for  irrigation,  to  willfully  waste  the  same,  or  willfully  or 
knowingly  to  allow  the  same  to  run  to  waste,  to  the  detri- 
ment or  injury  of  any  other  person  [Laws  1895,  p.  117]. 


CALIFORNIA. 

CONSTITUTIONAL   PROVISIONS. 

[Use  of  Water  for  Sale,  etc.,  a  Public  Use— Regulation  of  Rates.] 

Art.  14,  §  1.  The  use  of  all  water  now  appropriated, 
or  that  may  hereafter  be  appropriated,  for  sale,  rental  or 
distribution,  is  hereby  declared  to  be  a  public  use,  and  sub- 
ject to  the  regulation  and  control  of  the  state,  in  tlje  man- 
ner to  be  prescribed  by  law:  provided,  that  the  rates  or 
compensation  to  be  collected  by  any  person,  company,  or 
corporation  in  this  state  for  the  use  of  water  supplied  to 
any  city  and  county,  or  city  or  town,  or  the  inhabitants 
thereof,  shall  be  fixed,  annually,  by  the  board  of  supervis- 
ors, or  city  and  county,  or  city  or  town  council,  or  other 
governing  body  of  such  city  and  county,  or  city  or  town, 
by  ordinance  or  otherwise,  in  the  manner  that  other  ordi- 
nances or  legislative  acts  or  resolutions  are  passed  by  such 
body,  and  shall  continue  in  force  for  one  year,  and  no 
longer.  Such  ordinances  or  resolutions  shall  be  passed  in 
the  month  of  February  of  each  year,  and  take  effect  on  the 
first  day  of  July  thereafter.  Any  board  or  body  failing 
to  pass  the  necessary  ordinances  or  resolutions  fixing  water 
rates,  where  necessary,  within  such  time,  shall  be  subject 
to  peremptory  process  to  compel  action,  at  the  suit  of  any 
party  interested,  and  shall  be  liable  to  such  further  processes 
and  penalties  as  the  legislature  may  prescribe.  Any  per- 
son, company  or  corporation  collecting  water  rates  in  any 
city  and  county,  or  city  or  town,  in  this  state,  otherwise 


APPENDIX.  331 

than  as  so  established,  shall  forfeit  the  franchises  and  water- 
works of  such  person,  company  or  corporation  to  the  city 
and  county,  or  city  or  town,  where  the  same  are  collected, 
for  the  public  use. 

[Right  to  Collect  Water  Rates  a  Franchise.] 

§  2.  The  right  to  collect  rates  or  compensation  for  the 
use  of  water  supplied  to  any  county,  city  and  county,  or 
town,  or  the  inhabitants  thereof,  is  a  franchise,  and  cannot 
be  exercised  except  by  authority  of  and  in  the  manner  pre- 
scribed by  law. 

STATUTORY  PROVISIONS. 

The  statutory  provisions  relating  to  irrigation  consist 
principally  of  the  following  sections  from  the  Civil  Code, 
under  the  title  "Water  Rights,"  and  the  acts  providing  for 
the  organization  and  government  of  irrigation  districts. 
These  provisions  and  acts  have  been  used  as  models  by  the 
legislatures  of  several  of  the  other  states. 

GENERAL  PROVISIONS  AS  TO  THE  RIGHT  OF  APPROPRIATION. 

[Civil  Code.] 
[Water  may  be  Appropriated.] 

§  1410.  The  right  to  the  use  of  running  water  flowing 
in  a  river  or  stream,  or  down  a  canyon  or  ravine,  may  be 
acquired  by  appropriation. 

[Appropriation  must  be  for  Useful  Purpose.] 

§  1411.  The  appropriation  must  be  for  some  useful  or 
beneficial  purpose,  and  when  the  appropriator  or  his  suc- 
cessor in  interest  ceases  to  use  it  for  such  a  purpose,  the 
right  ceases. 


332  LAW  OF  IRRIGATION. 

[Place  of  Diversion  and  Use  may  be  Changed.] 

§  1412.  The  person  entitled  to  the  use  may  change  the- 
place  of  diversion,  if  others  are  not  injured  by  such  change, 
and  may  extend  the  ditch,  flume,  pipe  line  or  aqueduct  by 
which  the  diversion  is  made  to  places  beyond  that  where 
the  first  use  was  made. 

[Use  of  Natural  Stream  as  Conduit.] 

§  1413.  The  water  appropriated  may  be  turned  into 
the  channel  of  another  stream,  and  mingle  with  its  water, 
and  then  reclaimed;  but  in  reclaiming  it,  the  water  already 
appropriated  by  another  must  not  be  diminished. 

[Priority  of  Appropriation.] 

§  1414.  As  between  appropriators,  the  one  first  in  time 
is  the  first  in  right. 

[Notice  of  Appropriation  to  be  Posted.] 

§  1415.  A  person  desiring  to  appropriate  water  must 
post  a  notice,  in  writing,  in  a  conspicuous  place  at  the  point 
of  intended  diversion,  stating  therein  (1)  that  he  claims 
the  water  there  flowing  to  the  extent  of  (giving  the  num- 
ber) inches,  measured  under  a  four-inch  pressure;  (2)  the 
purposes  for  which  he  claims  it,  and  the  place  of  intended 
use;  (3)  the  means  by  which  he  intends  to  divert  it,  and 
the  size  of  the  flume,  ditch,  pipe  or  aqueduct  in  which  he 
intends  to  divert  it.  A  cop}-  of  the  notice  must,  within  ten 
days  after  it  is  posted,  be  recorded  in  the  office  of  the  re- 
corder of  the  county  in  which  it  is  posted. 

[Construction  of  Works.] 

§   1416.     Within  sixty  days  after  the  notice  is  posted,. 


APPENDIX.  333 

the  claimant  must  commence  the  excavation  or  construction 
of  the  works  in  which  he  intends  to  divert  the  water,  and 
must  prosecute  the  work  diligently  and  uninterruptedly  to 
completion,  unless  temporarily  interrupted  by  snows  or 
rain:  provided,  that  if  the  erection  of  a  dam  has  been 
recommended  by  the  California  Debris  Commission  at  or 
near  the  place  where  it  is  intended  to  divert  the  water,  the 
•claimant  shall  have  sixty  days  after  the  completion  of  such 
dam  in  which  to  commence  the  excavation  or  construction 
of  the  works  in  which  he  intends  to  divert  the  water.  [This 
proviso  was  added  to  the  original  statute  as  an  amendment 
by  an  act  approved  March  23,  1895;  St.  1895,  p.  70.] 

» 
[Completion  Defined.] 

§  1417.  By  "completion"  is  meant  conducting  the  wa- 
ters to  the  place  of  intended  use. 

[Doctrine  of  Relation.] 

§  1418.  By  a  compliance  with  the  above  rules,  the 
claimants'  right  to  the  use  of  the  water  relates  back  to  the 
time  the  notice  was  posted. 

[Forfeiture  of  Right.] 

§  1419.  A  failure  to  comply  with  such  rules  deprives 
the  claimants  of  the  right  to  the  use  of  the  water  as  against 
a  subsequent  claimant  who  complies  therewith. 

[Roles  Applicable  to  Existing  Claims.] 

§  1420.  Persons  who  have  heretofore  claimed  the  right 
to  water,  and  who  have  not  constructed  works  in  which  to 
-divert  it,  and  who  have  not  diverted  nor  applied  it  to  some 


334  LAW  OF  IRRIGATION. 

useful  purpose,  must,  within  twenty  days  thereafter,  pro- 
ceed as  in  this  title  provided,  or  their  right  ceases. 

[Recorder  to  Keep  Record  Book.]      * 

§  1421.  The  recorder  of  each  county  must  keep  a  book, 
in  which  he  must  record  the  notices  provided  for  in  this, 
title. 

[Riparian  Rights  Protected.] 

§  1422.  The  rights  of  riparian  proprietors  are  not  af- 
fected by  the  provisions  of  this  title.  [Repealed  March  15> 
1887;  St.  1887,  p.  114.] 

REGULATION  OF  THE  SALE  AND  DISTRIBUTION  OF  WATER. 

Two  acts  have  been  passed  relating  to  the  regulation  of 
the  sale,  rental  and  distribution  of  water  for  irrigation  in 
the  counties  of  the  state,  these  acts  being  based  upon  the 
constitutional  provisions  given  above.  The  first  of  these 
acts,  approved  March  26,  1880  [St.  1880,  p.  16],  entitled 
"An  act  authorizing  the  boards  of  supervisors  of  the  coun- 
ties in  which  water  is  sold  for  the  purpose  of  irrigation  to> 
fix  the  rates  at  which  such  water  shall  be  sold,"  embodies 
the  constitutional  provisions  so  far  as  these  relate  to  coun- 
ties, provides  an  action  to  enforce  the  forfeiture  of  fran- 
chises for  collecting  excessive  rates,  and  also  to  compel  the 
performance  of  their  duty  by  the  supervisors,  and  contains 
an  additional  provision  that  "no  person,  company  or  cor- 
poration selling  water  for  irrigation  shall  be  permitted  to 
exercise  any  control  as  to  the  use  of  the  water  after  its  de- 
livery to  the  purchaser." 

The  act  of  March  12,  1885  [St.  1885,  p.  95],  is  more 
extensive,  and  provides  as  follows: 


APPENDIX.  335 

[Use  of  Water  for  Sale,  etc.,  a  Public  Use.] 

§  1.  By  this  section,  the  use  of  water  appropriated  for 
sale,  rental  or  distribution  is  declared  a  public  use,  and  the 
right  to  collect  rates  or  compensation  therefor  a  franchise, 
and  except  when  furnished  to  a  city,  city  and  county,  or  town, 
or  the  inhabitants  thereof,  to  be  regulated  and  controlled 
in  the  several  counties  by  the  several  boards  of  supervisors. 

[Board  of  Supervisors  to  Fix  Rates.] 

§  2.  The  boards  of  supervisors  are  by  this  section  au- 
thorized and  required,  as  provided  by  the  act,  to  fix  and 
regulate  the  maximum  rates  at  which  any  person,  company, 
association  or  corporation  having  or  to  have  appropriated 
water  for  sale,  rental  or  distribution  in  each  of  the  coun- 
ties, may  and  shall  sell,  rent  or  distribute  the  same. 

[Petition  to  Fix  Rates.] 

§  3.  This  section  provides  that  whenever  a  written  pe- 
tition to  regulate  and  control  the  rates  and  compensation 
to  be  collected  for  water,  specifying  the  person,  compa- 
nies, etc.,  whose  water  rates  are  to  be  regulated  or  control- 
led, is  filed  with  the  clerk  of  the  board  of  supervisors  of  any 
county  by  not  less  than  twenty-five  inhabitants  of  the  coun- 
ty who  are  tax  payers,  such  clerk  shall  cause  the  petition, 
together  with  a  notice  of  the  time  and  place  of  hearing 
thereof,  to  be  published  or  posted  as  prescribed.  The  board 
may  also  cause  citations  to  issue  to  any  person  or  persons 
within  the  county  to  attend  and  give  evidence  at  the  hear- 
ing, and  may  compel  such  attendance  by  attachment. 

[Value  of  Works  to  be  Estimated  at  Hearing.] 

§  4.     The  board  is  required  at  the  hearing  to  estimate 


336  LAW  OP  IRRIGATION. 

the  value  of  the  canals,  etc.,  actually  used  and  useful  in 
connection  with  the  appropriation  and  furnishing  of  the 
water,  owned  by  the  person,  association,  company  or  cor- 
poration whose  franchise  is  to  be  regulated,  and  also  all 
reasonable  expenses  for  repairs,  management  and  operation ; 
and  for  this  purpose  they  may  require  the  attendance  of 
witnesses  and  the  production  of  documentary  evidence. 

§  5.  In  the  regulation  and  control  of  such  water  rates 
for  each  of -such  persons,  companies,  associations  and  cor- 
porations, such  board  of  supervisors  may  establish  different 
rates  at  which  water  may  and  shall  be  sold,  rented  or  dis- 
tributed, as  the  case  may  be;  and  may  also  establish  differ- 
ent rates  and  compensation  for  such  water  so  to  be  fur- 
nished for  the  several  different  uses,  such  as  mining,  irrigat- 
ing, mechanical,  manufacturing  and  domestic,  for  which 
such  water  shall  be  supplied  to  such  inhabitants,  but  such 
rates  as  to  each  class  shall  be  equal  and  uniform.  [This 
section  here  prescribes  the  limits  within  which  the  rates 
are  to  be  fixed,  and  the  elements  to  be  considered  in  estab- 
lishing rates  that  shall  be  equal,  reasonable  and  just  to  all 
parties.]  The  said  rates,  when  so  fixed  by  such  board, 
shall  be  binding  and  conclusive  for  not  less  than  one  year 
next  after  their  establishment,  and  until  established  anew 
or  abrogated  by  such  board  of  supervisors,  as  hereinafter 
provided.  And  until  such  rates  shall  be  so  established,  or 
after  they  shall  have  been  abrogated  by  such  board  of  super- 
visors as  in  this  act  provided,  the  actual  rates  established 
and  collected  by  each  of  the  persons,  companies,  associations 
and  corporations  now  furnishing,  or  that  shall  hereafter 
furnish,  appropriated  waters  for  sale,  rental  or  distribution 
to  the  inhabitants  of  any  of  the  counties  of  this  state,  shall 


APPENDIX.  337 

be  deemed  and    accepted  as  the    legally  established    rates 
thereof. 

[Change  of  Rates.] 

§  6.  This  section  provides  that,  after  rates  have  been 
established  by  the  board,  they  may  be  established  anew,  or 
abrogated  in  whole  or  in  part,  by  such  board,  to  take  effect 
not  less  than  one  year  next  after  such  first  establishment. 
The  fates  may  be  changed  upon  the  written  petition  of  the 
inhabitants,  as  before  provided,  or  upon  that  of  any  of  the 
persons,  companies,  etc.,  whose  rates  have  been  fixed  and 
regulated. 

[Record  of  Rates  must  be  Published.] 

8  7.  Boards  of  supervisors  fixing  and  establishing  orig- 
inally or  anew,  or  abolishing,  rates,  are  required  by  this 
section  to  cause  a  record  thereof  to  be  made,  and  to  pub- 
lish or  post  the  same  as  required  in  the  case  of  petitions 
and  notices. 

[Duty  to  Furnish  Water  at  Rates  Established.] 

§  8.  Any  and  all  persons,  companies,  associations  or 
corporations  furnishing  for  sale,  rental  or  distribution  any 
appropriated  waters  to  the  inhabitants  of  any  county  or 
counties  of  this  state  (other  than  to  the  inhabitants  of  any 
city,  city  and  county,  or  town  therein)  shall  so  sell,  rent 
or  distribute  such  waters  at  rates  not  exceeding  the  estab- 
lished rates  fixed  and  regulated  therefor  by  the  boards  of 
supervisors  of  such  counties,  or  as  fixed  and  established  by 
such  person,  company,  association  or  corporation,  as  pro- 
vided in  this  act. 


338  LAW  OF  IRRIGATION. 

[Penalty  for  Collecting  Excessive  Rates.] 

§  9.  This  section  provides  that  any  person,  company, 
etc.,  violating  the  provision  of  the  preceding  section  by  col- 
lecting excessive  rates,  shall  be  liable,  in  an  action  by  the 
inhabitants  so  aggrieved,  to  a  recovery  of  the  whole  rate 
so  collected,  together  with  actual  damages  sustained  by  such 
inhabitant,  with  costs  of  suit. 

[Duty  to  Sell  Water  to  all  Persons  Tendering  Rates.] 

§  10.  Every  person,  company,  association  and  corpo- 
ration, having  in  any  county  in  the  state  (other  than  in  any 
city,  city  and  county,  or  town  therein)  appropriated  waters 
tor  sale,  rental  or  distribution,  to  the  inhabitants  of  such 
county,  upon  demand  therefor,  and  tender  in  money  of 
such  established  water  rates,  shall  be  obliged  to  sell,  rent 
or  distribute  such  water  to  such  inhabitants  at  the  estab- 
lished rates  provided  and  fixed  therefor  as  'in  this  act  pro- 
vided, whether  so  fixed  by  the  board  of  supervisors  or  other- 
wise, to  the  extent  of  the  actual  supply  of  such  appropriated 
waters  of  such  person,  company,  association  or  corporation, 
for  such  purposes.  If  any  person,  company,  association  or 
corporation,  having  water  for  such  use,  shall  refuse  com- 
pliance with  such  demand,  or  shall  neglect,  for  the  period 
of  five  days  after  such  demand,  to  comply  therewith  to  the 
extent  of  his  or  its  reasonable  ability  so  to  do,  [such  person, 
company,  etc.]  shall  be  liable  in  damages  to  the  extent  of 
the  actual  injury  sustained  by  the  person  or  party  making 
such  demand  and  tender,  to  be  recovered,  with  costs. 

[Condemnation  of  Right  of  Way.l 

§  11.  This  section  provides  for  the  condemnation  of 
land  and  premises  for  right  of  way  by  persons,  companies, 
etc.,  having  the  right  to  appropriate  water. 


APPENDIX.  339 

[Private  Contracts  not  Affected.] 

§  11-J.  Nothing  in  this  act  contained  shall  be  con- 
strued to  prohibit  or  invalidate  any  contract  already  made, 
or  which  shall  hereafter  be  made,  by  or  with  any  of  the 
persons,  companies,  associations  or  corporations  described  in 
section  two  of  this  act,  relating  to  the  sale,  rental  or  distribu- 
tion of  water,  or  to  the  sale  or  rental  of  easements  and  servi- 
tudes of  the  right  to  the  flow  and  use  of  water;  nor  to  pro- 
hibit or  interfere  with  the  vesting  of  rights  under  any  such 
contract.  [Section  added  March  2,  1897;  §t.  1897,  c.  54.] 

[Duty  to  Continue  Furnishing  Water.] 

Civ.  Code,  §  552.  Whenever  any  corporation,  organized 
under  the  laws  of  this  state,  furnishes  water  to  irrigate 
lands  which  said  corporation  has  sold,  the  right  to  the  flow 
and  use  of  said  water  is  and  shall  remain  a  perpetual  ease- 
ment to  the  land  so  sold,  at  such  rates  and  terms  as  may 
be  established  by  said  corporation  in  pursuance  of  law. 
And  whenever  any  person  who  is  cultivating  land,  on  the 
line  and  within  the  flow  of  any  ditch  owned  by  such  corpo- 
ration, has  been  furnished  water  by  it,  with  which  to  irri- 
gate his  .land,  such  person  shall  be  entitled  to  the  continued 
use  of  said  water,  upon  the  same  terms  as  those  who  have 
purchased  their  land  of  the  corporation. 

OFFENSES. 
[Pen.  Code  1899.] 

[Unlawfully  Taking   Water   from  Ditch— Disturbing   Headgate 
— Polluting  Water.] 

§  592.  Every  person  who  shall,  without  authority  of 
the  owner  or  managing  agent,  and  with  intent  to  defraud, 
take  water  from  any  canal,  ditch,  flume  or  reservoir  used 


340  LAW  OF  IRRIGATION. 

for  the  purpose  of  holding  or  conveying  water  for  manu- 
facturing, agricultural,  mining,  irrigating  or  generation  of 
power  for  domestic  uses,  or  who  shall,  without  like  authori- 
ty, raise,  lower  or  otherwise  disturb  any  gate  or  other  ap- 
paratus thereof  used  for  the  control  or  measurement  of 
water,  or  who  shall  empty  or  place,  or  cause  to  be  emptied 
or  placed,  into  'any  such  canal,  ditch,  flume  or  reservoir, 
any  rubbish,  filth  or  obstruction  to  the  free  flow  of  the  wa- 
ter, is  guilty  of  a  misdemeanor.  [Amendment  approved 
March  20,  1899 ;  St.  1899,  c.  110.] 

[Failure  to  Provide  Fish  Screen.] 

§  629.  Ditch  owners  are  required  by  this  section  to 
provide  a  wire  screen  at  their  headgates  to  prevent  fish 
from  entering  the  ditches,  and  failure  to  provide  such 
screen  is  made  a  misdemeanor. 

[Injuring  Ditch,  etc.] 

§  607.  By  this  section  it  is  provided  that  every  person 
who  willfully  and  maliciously  cuts,  breaks,  injures  or  de- 
stroys any  dam,  canal,  reservoir,  etc.,  or  who,  between  cer- 
tain periods,  plows  up  or  loosens  the  soil  in  the  bed  or  on 
the  sides  of  any  natural  watercourse  or  channel,  without 
removing  such  soil  within  a  time  stated,  is  guilty  of  a  mis- 
demeanor. 

STATE  ENGINEER. 

By  an  "act  to  provide  a  system  of  irrigation,"  etc.,  ap- 
proved March  29,  1878,  the  office  of  the  state  engineer  was 
created,  the  duty  of  the  engineer  as  to  irrigation,  etc.,  being 
prescribed  by  the  act.  4  Deering's  Codes  and  Statutes, 
p.  469. 


COLORADO. 

CONSTITUTIONAL   PROVISIONS. 

[Water  Public  Property.] 

Art.  16,  §  5.  The  water  of  every  natural  stream  not 
heretofore  appropriated,  within  the  state  of  Colorado,  is 
hereby  declared  to  be  the  property  of  the  public,  and  the 
same  is  dedicated  to  the  use  of  the  people  of  the  state,  sub- 
ject to  appropriation  as  hereinafter  provided. 

[Right  of  Appropriation— Priority.] 

Art.  16,  §  6.  The  right  to  divert  unappropriated  wa- 
ters of  any  natural  stream  for  beneficial  uses  shall  never 
be  denied.  Priority  of  appropriation  shall  give  the  better 
right  as  between  those  using  the  water  for  the  same  pur- 
pose; but  when  the  waters  of  any  natural  stream  are  not 
sufficient  for  the  service  of  all  those  desiring  the  use  of  the 
same,  those  using  the  water  for  domestic  purposes  shall 
have  the  preference  over  those  claiming  for  any  other  pur- 
pose, and  those  using  the  water  for  agricultural  purposes 
shall  have  the  preference  over  those  using  the  same  for  man- 
ufacturing purposes. 

[Right  of  Way— Eminent  Domain.] 

Art.  16,  §  7.  All  persons  and  corporations  shall  have 
the  right  of  way  across  public,  private  and  corporate  lands 
for  the  construction  of  ditches,  canals  and  flumes,  for  the 
purpose  of  conveying  water  for  domestic  purposes,  for  the 


342  LAW  OF  IRRIGATION. 

irrigation  of  agricultural  lands,  and  for  mining  and  manu- 
facturing purposes,  and  for  drainage,  upon  payment  of  just 
compensation. 

Art.  2,  §  14.  Private  property  shall  not  be  taken  for 
private  use  unless  by  consent  of  the  owner,  except  for  private 
ways  of  necessity,  and  except  for  reservoirs,  drains,  flumes 
or  ditches,  on  or  across  the  lands  of  others,  for  agricultural, 
mining,  milling,  domestic  or.  sanitary  purposes. 

Art.  2,  §  15.  Private  property  shall  not  be  taken  or 
damaged  for  public  or  private  use  without  just  compensa- 
tion. Such  compensation  shall  be  ascertained  by  a  board 
of  commissioners  of  not  less  than  three  freeholders,  or  by 
a  jury,  when  required  by  the  owner  of  the  property,  in  such 
manner  as  may  be  prescribed  by  law;  and  until  the  same 
shall  be  paid  to  the  owner,  or  into  court  for  the  owner,  the 
property  shall  not  be  needlessly  disturbed,  or  the  proprietary 
rights  of  the  owner  therein  divested ;  and  whenever  an  at- 
tempt is  made  to  take  private  property  for  a  use  alleged  to 
be  public,  the  question  whether  the  contemplated  use  be 
really  public  shall  be  a  judicial  question,  and  determined 
as  such  without  regard  to  any  legislative  assertion  that  the 
use  is  public. 

[County  Commissioners  to  Fix  Water  Rates.] 

"Art.  1C,  §  8.  The  general  assembly  shall  provide  by 
law  that  the  board  of  county  commissioners,  in  their  respec- 
tive counties,  shall  have  power,  when  application  is  made 
to  them  by  either  party  interested,  to  establish  reasonable 
maximum  rates  to  be  charged  for  the  use  of  water,  whether 
furnished  by  individuals  or  corporations. 


APPENDIX.  343 

[Taxation  of  Ditches.] 

Art.  10,  §  3.  Ditches,  canals  and  flumes  owned  and 
used  by  individuals  or  corporations  for  irrigating  lands 
owned  by  such  individuals  or  corporations,  or  the  individ- 
ISM}  members  thereof,  shall  not  be  separately  taxed  so  long 
as  they  shall  be  owned  and  used  exclusively  for  such  pur- 
pose. 

STATUTORY  PROVISIONS. 
[References  to  Mills'  Annotated  Statutes.] 

This  compilation  contains  the  Colorado  statutes  on  the 
subject  of  irrigation,  excepting  those  relating  to  .the  adjudi- 
cation of  priorities  and  public  control  of  irrigation,  already 
discussed  in  the  text,  and  some  acts  of  local  or  temporary  in- 
terest. 

THE  RIGHT  OF  APPROPRIATION. 

[Owners  of  Lands  on  Streams  Entitled  to  Use  of  Water.] 

§  2256.  All  persons  who  claim,  own  or  hold  a  posses- 
sory right  or  title  to  any  land  or  parcel  of  land  lying  with- 
in the  boundary  of  the  state  of  Colorado,  as  defined  in  the 
constitution  of  said  state,  when  those  claims  are  on  the 
bank,  margin  or  neighborhood  of  any  stream  of  water,  creek 
or  river,  shall  be  entitled  to  the  use  of  the  water  of  said 
stream,  creek  or  river,  for  the  purpose  of  irrigation,  and 
making  said  claims  available  to  the  full  extent  of  the  soil, 
for  agricultural  purposes. 

[Vested  Rights  Protected.] 

§  2275.  Nothing  in  this  chapter  contained  shall  be  so 
construed  as  to  impair  the  prior  vested  rights  of  any  mill 


344  LAW  OP  IRRIGATION. 

or  ditch  owner  or  other  person  to  use  the  water  of  any  such 
watercourse. 

[Irrigation  of  Meadows.] 

§  2268.  All  persons  who  shall  have  enjoyed  the  use  of 
the  water  in  any  natural  stream  for  the  irrigation  of  any 
meadow  land,  by  the  natural  overflow  or  operation  of  the 
water  of  such  stream,  shall,  in  case  the  diminishing  of  wa- 
ter supplied  by  such  stream  for  any  cause  prevents  such  ir- 
rigation therefrom  in  as  ample  a  manner  as  formerly,  have 
the  right  to  construct  a  ditch  for  the  irrigation  of  such 
meadow,  and  to  take  water  from  such  stream  therefor,  and 
his,  her  or  their  right  to  water  through  such  ditch  shall 
have  the  same  priori  y  as  though  such  ditch  had  been  con- 
structed at  the  time  hi,  «he  or  they  first  occupied  and  used 
such  land  as  meadow  ground. 

[Appropriation  of  Waste  and  Seepage  Water.] 

§  2269.  That  all  ditches  now  constructed  or  hereafter 
to  be  constructed  for  the  purpose  of  utilizing  the  waste, 
seepage  or  spring  waters  of  the  state  shall  be  governed  by 
the  same  laws  relating  to  priority  of  right  as  those  ditches 
constructed  for  the  purpose  of  utilizing  the  waters  of  run- 
ning streams:  provided,  that  the  person  upon  whose  lands 
the  seepage  or  spring  water  first  arise  shall  have  the  prior 
right  to  such  waters  if  capable  of  being  used  upon  his  lands. 

[Exchange  of  Water  Between  Streams.] 

§  1.  Whenever  any  person  or  company  shall  divert 
water  from  one  public  stream  and  turn  it  into  another  pub- 
lic stream,  such  person  or  company  may  take  out  the  same 


APPENDIX.  345 

amount  of  Water  again,  less  a  reasonable  deduction  for 
seepage  and  evaporation,  to  be  determined  by  the  state  engi- 
neer. 

§  2.  Any  person  or  company  transferring  water  from 
one  public  stream  to  another  shall  be  required  to  construct 
and  maintain,  under  the  direction  of  the  state  engineer, 
measuring  flumes  or  weirs  and  self-registering  devices  at  the 
point  where  the  water  leaves  its  natural  watershed  and  is 
turned  into  another,  and  also  where  it  is  finally  diverted 
for  use  from  the  public  stream. 

§  3.  It  shall  be  the  duty  of  the  water  commissioner  of 
the  district  in  which  the  water  is  used  to  keep  a  record  of 
the  amount  of  water  so  turned  into  his  district  from  any 
other  district. 

§  4.  When  the  rights  of  others  are  not  injured  thereby, 
it  shall  be  lawful  for  the  owner  of  a  reservoir  to  deliver 
stored  water  into  a  ditch  entitled  to  water,  or  into  the  pub- 
lic stream,  to  supply  appropriations  from  said  stream,  and 
to  take  in  exchange  therefor  from  the  public  stream  higher 
up  an  equal  amount  of  water,  less  a  reasonable  deduction 
for  loss,  if  any  there  be,  to  be  determined  by  the  state  engi- 
neer: provided,  that  the  person  or  company  desiring  such 
exchange  shall  be  required  to  construct  and  maintain,  under 
the  direction  of  the  state  engineer,  measuring  flumes  or 
weirs  and  self-registering  devices  at  the  point  where  the 
water  is  turned  into  the  stream  or  ditch  taking  the  same, 
or  as  near  such  point  as  is  practicable,  so  that  the  water 
commissioner  may  readily  determine  and  secure  the  just 
and  equitable  change  of  water  as  herein  provided.  [Laws 
1897,  p.  1T6.] 


346  LAW  OF  IRRIGATION. 

[Exchange  of  Water  Between  Ditches.] 

§  3.  It  shall  be  lawful,  however,  for  the  owners  of 
ditches  and  water  rights  taking  water  from  the  same  stream, 
to  exchange  with,  and  loan  to  each  other,  for  a  limited  time, 
the  water  to  which  each  may  be  entitled,  for  the  purpose 
of  saving  crops  or  of  using  the  water  in  a  more  economical 
manner:  provided,  that  the  owner  or  owners  making  such 
loan  or  exchange  shall  give  notice  in  writing,  signed  by  all 
the  owners  participating  in  said  loan  or  exchange,  stating 
that  such  loan  or  exchange  has  been  made,  and  for  what 
length  of  time  the  same  shall  continue,  whereupon  said  wa- 
ter commissioner  shall  recognize  the  same  in  his  distribu- 
tion of  water.  [Laws  1899,  p.  235.] 

[Domestic  Uses  Preferred.] 

3  Mills'  Ann.  St.  §  2269a.  Water  claimed  and  appro- 
priated for  domestic  purposes  shall  not  be  employed  or 
vised  for  irrigation  or  for  application  to  land  or  plants  in 
any  manner  to  any  extent  whatever:  provided,  that  the  pro- 
visions of  this  section  shall  not  prohibit  any  citizen  or  town 
or  corporation  organized  solely  for  the  purpose  of  sup- 
plying water  to  the  inhabitants  of  such  city  or  town  from 
supplying  water  thereto  for  sprinkling  streets  and  extin- 
guishing fires  or  for  household  purposes. 

3  Mills'  Ann.  St.  §  2269b.  This  section  provides  that  any 
person  claiming  the  right  to  divert  water  for  domestic  pur- 
poses from  any  natural  stream  who  shall  apply  or  knowingly 
permit  the  water  so  diverted  to  be  applied  to  other  than  do- 
mestic purposes,  to  the  injury  of  any  other  person  entitled  to 
use  such  water  for  irrigation,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  subject  to  a  prescribed  penalty. 


APPENDIX.  347 

RIGHT  OF  WAY  FOR  DITCHES,  ETC. 
[Right  of  Way  Granted.] 

§  2257.  When  any  person  owning  claims  in  such  locali- 
ty has  not  sufficient  length  of  area  exposed  to  said  stream 
to  obtain  a  sufficient  fall  of  water  to  irrigate  his  land,  or 
that  his  farm  or  land  used  by  him  for  agricultural  purposes 
is  too  far  removed  from  said  stream,  and  that  he  has  no 
water  facilities  on  those  lands,  tie  shall  be  entitled  to  a  right 
of  way  through  the  farms  or  tracts  of  lands  which  lie  be- 
tween him  and  said  stream,  or  the  farms  or  tracts  of  lands 
which  lie  above  or  below  him  on  said  stream,  for  the  pur- 
poses hereinbefore  stated. 

[Right  Limited.] 

§  2258.  Such  right  of  way  shall  extend  only  to  a  ditch, 
dyke  or  cutting  sufficient  for  the  purpose  required. 

[Condemnation  of  Right  of  Way.] 

§  2260.  Upon  the  refusal  of  the  owners  of  tracts  of 
land  or  lands  through  which  said  ditch  is  proposed  to  run 
to  allow  of  its  passage  through  their  property,  the  person 
or  persons  desiring  to  open  such  ditch  may  proceed  to  con- 
demn and  take  the  right  of  way  therefor  (under  the  pro- 
visions of  chapter  thirty-one  [Mills'  Ann.  St.  c.  45]  of 
these  laws,  concerning  eminent  domain).' 

[Only  One  Ditch  When  Practicable.] 

§  2261.  No  tract  or  parcel  of  improved  or  occupied 
land  in  this  state  shall,  without  the  written  consent  of  the 
owner  thereof,  be  subjected  to  the  burden  of  two  or  more 
irrigating  ditches  constructed  for  the  purpose  of  conveying 


348  LAW  OF  IRRIGATION. 

water  through  said  property  to  lands  adjoining  or  beyond 
the  same,  when  the  same  object  can  feasibly  and  practica- 
bly be  attained  by  uniting  and  conveying  all  the  water  neces- 
sary to  be  conveyed  through  such  property  in  one  ditch. 

[Shortest  Route  to  be  Taken.] 

§  2262.  Whenever  any  person  or  persons  find  it  neces- 
sary to  convey  water  for  the  purpose  of  irrigation  through 
the  improved  or  occupied  lands  of  another,  he  or  they  shall 
select  for  the  line  of  such  ditch  through  such  property  the 
shortest  and  most  direct  route  practicable  upon  which  said 
ditch  can  be  constructed  with  uniform  or  nearly  uniform 
grade,  and  discharge  the  water  at  a  point  where  it  can  be  con- 
veyed to  and  used  upon  the  land  or  lands  of  the  person  or 
persons  constructing  such  ditch. 

[Ditch  Owner  must  Permit  Enlargement  of  Ditch.] 

§  2263.  No  person  or  persons  having  constructed  a  pri- 
vate ditch  for  the  purposes  and  in  the  manner  hereinbefore 
provided  shall  prohibit  or  prevent  any  other  person  or  per- 
sons from  enlarging  or  using  any  ditch  by  him  or  them  con- 
structed in  common  with  him  or  them,  upon  payment  to  him 
or  them  of  a  reasonable  proportion  of  the  cost  of  construc- 
tion of  said  ditch. 

[Right  to  Extend  Heads  of  Ditches  up  Stream.] 

§  2264.  In  case  the  channel  of  any  natural  stream  shall 
become  so  cut  out,  lowered,  turned  aside  or  otherwise 
changed  from  any  cause  as  to  prevent  any  ditch,  canal  or 
feeder  of  any  reservoir  from  receiving  the  proper  inflow  of 
water  to  which  it  may  be  entitled  from  such  natural  stream, 


APPENDIX.  349 

the  owner  or  owners  of  such  ditch,  canal  or  feeder  shall  have 
the  right  to  extend  the  head  of  such  ditch,  canal  or  feeder  to 
such  distance  up  the  stream  which  supplies  the  same  as  may 
be  necessary  for  securing  a  sufficient  flow  of  water  into  the 
same,  and  for  that  purpose  shall  have  the  same  right  to 
maintain  proceedings  for  condemnation  of  right  of  way  for 
such  extension  as  in  case  of  constructing  a  new  ditch,  and 
the  priority  of  right  to  take  water  from  such  stream  through 
such  ditch,  canal  or  feeder  as  to  any  such  ditch,  canal  or 
feeder  shall  remain  unaffected  in  any  respect  by  reason  of 
such  extension:  provided,  however,  that  no  such  extension 
shall  interfere  with  the  complete  use  or  enjoyment  of  any 
other  ditch,  canal  or  feeder. 

[Map  and  Statement  to  be  Filed.] 

§§  2265,  2266.  This  act  has  been  held  unconstitutional 
on  account  of  the  insufficiency  of  its  title  [see  text,  §  40]. 
For  a  statute  copied  substantially  from  this  act,  see  Bal. 
Codes  Wash.  §§  4141,  4142,  infra. 

[Change  of  Point  of  Diversion.] 

By  the  act  of  April  6,  1899,  it  was  provided  that  per- 
sons desirous  of  changing  the  point  of  diversion  of  water 
shall  present  a  petition  to  the  district  court  from  which  the 
original  decree  defining  his  water  right  issued,  which  peti- 
tion shall  be  heard  in  the  same  manner  as  a  petition  for  an 
original  decree.  Should  the  decree  be  granted,  the  peti- 
tioner is  required  to  prepare  maps  of  the  ditches,  etc.,  and 
file  the  same,  with  a  copy  of  the  decree,  with  the  county 
clerk  and  state  engineer,  and  the  state  engineer  shall  notify 
the  proper  water  commissioner,  who  shall  thereupon  allot 
to  the  new  ditch  the  priority  formerly  alloted  to  the  original 
ditch.  [Laws  1899,  p.  235,  §§  1,  2.] 


350  LAW  OP  IRRIGATION. 

[Right  to  Place  Wheels,  etc.,  on  Banks  of  Streams.] 

§  2273.  All  persons  on  the  margin,  brink,  neighbor- 
hood or  precinct  of  any  stream  of  water  shall  have  the  right 
and  power  to  place  upon  the  bank  of  said  stream  a  wheel 
or  other  machine  for  the  purpose  of  raising  water  to  the 
level  required  for  the  purpose  of  irrigation,  and  the  right 
of  way  shall  not  be  refused  by  the  owner  of  any  tract  of 
land  upon  which  it  is  required,  subject,  of  course,  to  the 
like  regulations  as  required  for  ditches,  and  laid  down  in 
sections  hereinbefore  enumerated. 

DUTIES  AND  LIABILITIES  OF  DITCH  OWNERS. 
[Owner  must  Maintain  Embankments— Tail  Ditch.] 

§  2274.  The.  owner  or  owners  of  any  ditch  for  irriga- 
tion or  other  purposes  shall  carefully  maintain  the  em- 
bankments thereof,  so  that  the  waters  of  such  ditch  may  not 
flood  or  damage  the  premises  of  others,  and  shall  make  a 
tail  ditch,  so  as  to  return  the  water  in  such  ditch,  with  as  lit- 
tle waste  as  possible,  into  the  stream  from  which  it  was  taken. 

[Bridging  Ditches  Crossing  Public  Highways.] 

§  2276.  Any  ditch  company  constructing  a  ditch,  or 
any  individual  having  ditches,  for  irrigation,  or  for  other 
purposes,  wherever  the  same  be  taken  across  any  public 
highway  or  public  traveled  road,  shall  put  a  good  substan- 
tial bridge,  not  less  than  fourteen  feet  in  breadth,  over  such 
watercourse  where  it  crosses  said  road. 

§  2277.  When  any  such  ditch  or  watercourse  shall  be 
constructed  across  any  public  traveled  road,  and  not  bridged 
within  three  days  thereafter,  it  shall  be  the  duty  of  the 


APPENDIX.  351 

supervisor  of  the  road  district  to  put  a  bridge  over  said 
ditch  or  watercourse,  of  the  dimensions  specified  in  section 
ten  [section  2276]  of  this  chapter,  and  call  on  the  owner  or 
owners  of  the  ditch  to  pay  the  expenses  of  constructing  such 
bridge. 

§  2281.  This  section  prescribes  the  proceedings  against 
the  ditch  owner  to  compel  payment. 

[Duty  to  Construct  Headgates.] 

§  2285.  The  owner  or  owners  of  every  irrigating  ditch, 
flume  or  canal  in  this  state  shall  be  required  to  erect  and 
keep  in  good  repair  a  headgate  at  the  head  of  their  ditch, 
flume  or  canal.  Such  headgate,  together  with  the  necessary 
embankments,  shall  be  of  sufficient  height  and  strength  to 
control  the  water  at  all  ordinary  stages.  The  framework 
of  such  headgate  shall  be  constructed  of  timber  not  less  than 
four  inches  square,  and  the  bottom,  sides  and  gate  or  gates 
shall  be  of  plank  not  less  than  two  inches  in  thickness. 

§  2286.  Owners  of  all  ditches  shall  be  liable  for  all 
damages  resulting  from  their  neglect  or  refusal  to  comply 
with  the  provisions  of  the  preceding  section. 

§§  2293,  2294.  By  a  later  act  it  is  made  the  duty  of 
all  persons  diverting  water  to  erect  and  maintain  headgates 
and  wastegates,  and  to  provide  ( suitable  locks  and  fastenings 
for  the  headgates,  and,  upon  their  failure  to  do  so  after  five 
days'  notice  from  the  water  commissioner  or  state  engineer, 
the  water  commissioner  shall  do  so  at  the  ditch  owner's 
expense.  The  keys  to  such  locks  are  to  be  kept  by  the  water 
commissioner  during  the  irrigating  season. 

[Ditches  in  Cities  to  be  Covered.] 

§   2278.     This  section  requires  the  owners  of  ditches  two 


352  LAW  OF  IRRIGATION. 

feet  wide  or  over,  and  carrying  water  to  a  depth  of  twelve 
inches  or  over,  in  cities,  to  keep  such  ditches  covered. 

[Headgate  to  be  Latticed.] 

§  2279.  This  section  requires  the  headgates  of  such 
ditches  to  be  latticed. 

[Penalty.] 

§  2780.  This  section  provides  a  penalty  for  a  violation 
of  the  two  preceding  sections. 

[Liability  of  Co-Owners  of  Ditches  for  Cleaning  and  Repairs.] 

3  Mills'  Ann.  St.  §§  2872a-2872j.  Co-owners  of  unin- 
corporated irrigating  ditches  are  required  to  contribute  to 
the  expense  and  labor  of  cleaning  and  repairing  the  ditch, 
and  upon  the  failure  of  one  or  more,  upon  the  request  of 
the  others,  to  contribute,  the  others  may  do  the  work,  and 
shall  have  a  lien  upon  the  interest  of  the  delinquent  or  de- 
linquents for  his  or  their  proportionate  share  of  the  cost. 
The  mode  of  securing  and  enforcing  the  lien  is  prescribed, 
and  the  lien  is  made  assignable. 

[Ditch  Owner  must  Prevent  Waste.] 

§  2282.  The  owner  of  any  irrigating  or  mill  ditch  shall 
carefully  maintain  and  keep  the  embankments  thereof  in 
good  repair,  and  prevent  the  water  from  wasting. 

[Running  Excess  of  Water  Forbidden.] 

§  2283.  During  the  summer  season  it  shall  not  be  law- 
ful for  any  person  or  persons  to  run  through  his  or  their 
irrigating  ditch  any  greater  quantity  of  water  than  is  ab- 


APPENDIX.  353 

solutely  necessary  for  irrigating  his  or  their  said  land,  and 
for  domestic  and  stock  purposes;  it  being  the  intent  and 
meaning  of  this  section  to  prevent  the  wasting  and  useless 
discharge  and  running  away  of  water. 

[Penalty— Violation  of  Above  Provisions.] 

§  2284.  Any  person  who  shall  willfully  violate  any  of 
the  provisions  of  this  act  shall,  on  conviction  thereof  before 
any  court  having  competent  jurisdiction,  be  fined  in  a  sum 
of  not  less  than  one  hundred  (100)  dollars.  Suits  for  pen- 
alties under  this  act  shall  be  brought  in  the  name  of  the 
people  of  the  state  of  Colorado. 

[When  Water  Shall  be  Kept  Flowing  in  Ditches.] 

3  Mills'  Ann.  St.  §  2287.  Every  person  or  company 
owning  or  controlling  any  canal  or  ditch  used  for  the  pur- 
poses of  irrigation  and -carrying  water  for  pay  shall,  when 
demanded  by  the  users  during  the  time  from  April  1st  un- 
til ISTovember  1st  in  each  year  keep  a  flow  of  water  therein, 
so  far  as  may  be  reasonably  practical  for  the  purpose  of  irri- 
gation, sufficient  to  meet  the  requirements  of  all  such  per- 
sons as  are  properly  entitled  to  the  use  of  water  therefrom, 
to  the  extent,  if  necessary,  to  which  such  person  may  be  en- 
titled to  water,  and  no  more:  provided,  however,  that  when- 
ever the  rivers  or  public  streams  or  sources  from  which  the 
water  is  obtained  are  not  sufficiently  free  from  ice,  or  the 
volume  of  water  therein  is  too  low  and  inadequate  for  that 
purpose,  then  such  canal  or  ditch  shall  be  kept  with  as  full 
a  flow  of  water  therein  as  may  be  practicable,  subject,  how- 
ever, to  the  rights  of  priorities  from  the  streams  or  other 
sources,  as  provided  by  law,  and  the  necessity  of  cleaning, 
repairing  and  maintaining  the  same  in  good  condition. 


354  LAW  OP  IRRIGATION. 

[Ditches  to  be  Kept  in  Repair— Outlets.] 

§  2288.  The  owners  or  persons  in  control  of  any  canal 
or  ditch  used  for  irrigating  purposes  shall  maintain  the 
same  in  good  order  and  repair,  ready  to  receive  water  by 
April  15th  in  each  year,  so  far  as  can  be  accomplished  by 
the  exercise  of  reasonable  care  and  diligence,  and  shall  con- 
struct the  necessary  outlets  in  the  banks  of  the  canal  or  ditch 
for  a  proper  delivery  of  the  water  to  persons  having  paid- 
up  shares,  or  who  have  rights  to  the  use  of  the  water:  pro- 
vided, however,  that  a  multiplicity  of  outlets  in  the  canal 
or  ditch  shall  at  all  times  be  avoided,  so  far  as  the  same  shall 
be  reasonably  practicable,  and  the  location  of  the  same  shall 
be  under  the  control  of,  and  shall  be  at  the  most  convenient 
and  practicable  points  consistent  with  the  protection  and 
safety  of  the  ditch  for  the  distribution  of  water  among  the 
various  claimants  thereof;  and  such  location  shall  be  under 
the  control  of  a  superintendent. 

[Duty  of  Ditch  Owners  to  Appoint  Superintendent.] 

§  2289.  It  shall  be  the  duty  of  those  owning  or  control- 
ling such  canals  or  ditches  to  appoint  a  superintendent, 
whose  duty  it  shall  be  to  measure  the  water  from  such  canal 
or  ditch  through  the  outlets,  to  those  entitled  thereto,  ac- 
cording to  his  or  her  pro  rata  share. 

[Liability  of  Superintendent  for  Failure  to  Deliver  Water.] 

§  2290.  Any  superintendent  or  any  person  having 
charge  of  the  said  ditch  who  shall  willfully  neglect  or  re- 
fuse to  deliver  water,  as  in  this  act  provided,  or  any  per- 
son or  persons  who  shall  prevent  or  interfere  with  the  prop- 
er delivery  of  water  to  the  person  or  persons  having  the 
right  thereto,  shall  be  guilty  of  a  misdemeanor,  and  upon 


APPENDIX.  355 

conviction  thereof  shall  be  subject  to  a  fine  of  not  less  than 
ten  nor  more  than  one  hundred  dollars  for  each  offense,  or 
imprisonment  not  exceeding  one  month,  or  by  both  such  fine 
and  imprisonment ;  and  the  money  thus  collected  shall  be  paid 
into  the  general  fund  of  the  county  in  which  the  misde- 
meanor has  been  committed;  and  the  owner  or  owners  of 
such  ditches  shall  be  liable  in  damages  to  the  person  or  per- 
sons deprived  of  the  use  of  the  water  to  which  they  were 
entitled  as  in  this  act  provided. 

[Water  to  be  Prorated  in  Case  of  Deficiency.] 

§  2267.  If  at  any  time  any  ditch  or  reservoir  from 
which  water  is  or  shall  be  drawn  for  irrigation  shall  not  be 
entitled  to  a  full  supply  of  water  from  the  natural  stream 
which  supplies  the  same,  the  water  actually  received  into 
and  carried  by  such  ditch,  or  held  in  such  reservoir,  shall  be 
divided  among  all  the  consumers  of  water  from  such  ditch  or 
reservoir,  as  well  as  the  owners,  shareholders  or  stockholders 
thereof,  as  the  parties  purchasing  water  therefrom ;  and  par- 
ties taking  water  partly  under  and  by  virtue  of  holding 
shares,  and  partly  by  purchasing  the  same,  to  each  his  share 
pro  rata,  according  to  the  amount  he,  she  or  they  (in  cases  in 
which  several  consume  water  jointly)  shall  be  then  entitled, 
so  that  all  owners  and  purchasers  shall  suffer  from  the  de- 
ficiency arising  from  the  cause  aforesaid  each  in  proportion 
to  the  amount  of  water  to  [sic]  which  he,  she  or  they  should 
have  received  in  case  no  such  deficiency  of  water  had  occur- 
red. 

[No  Person  to  Receive  More  Water  Than  he  is  Entitled  to.] 

§  2395.  That  it  shall  be  the  duty  of  every  person  who 
is  entitled  to  take  water  for  irrigation  purposes  from  any 


356  LA-W  OF  IRRIGATION. 

ditch,  canal  or  reservoir  to  see  that  he  receives  no  more 
water  from  such  ditch,  canal  or  reservoir  through  his  head- 
gate,  or  by  any  ways  or  means  whatsoever,  than  he  is  en- 
titled to,  and  that  he  shall  at  all  times  take  every  precaution 
to  prevent  more  water  than  he  is  entitled  to  coming  from 
such  ditch,  canal  or  reservoir  upon  his  land. 

[Duty  of  Person  Receiving  Excess  of  Water.] 

§  2396.  That  it  shall  be  the  duty  of  every  such  person, 
taking  water  from  any  ditch,  canal  or  reservoir,  to  be  used 
for  irrigation  purposes,  on  finding  that  he  is  receiving  more 
water  from  such  ditch,  canal  or  reservoir,  either  through 
his  headgate,  or  by  means  of  leaks,  or  by  any  means  whatso- 
ever, immediately  to  take  steps  to  prevent  his  further  receiv- 
ing more  water  from  such  ditch,  canal  or  reservoir  than  he  is 
entitled  to,  and  if  knowingly  he  permits  such  extra  water 
to  come  upon  his  land  from  such  ditch,  canal  or  reservoir, 
and  does  not  immediately  notify  the  owner  or  owners  of 
such  ditch  to  take  steps  to  prevent  its  further  flowing  upon 
his  land,  he  shall  be  liable  to  any  person,  company  or  cor- 
poration who  may  be  injured  by  such  extra  appropriation 
of  water  for  the  actual  damage  sustained  by  the  party  ag- 
grieved; which  damages  shall  be  adjudged  to  be  paid,  to- 
gether with  the  costs  of  suit,  and  a  reasonable  attorney's 
fee,  to  be  fixed  by  the  court  and  taxed  with  the  costs. 

REGULATION  OK  DISTRIBUTION  OF  WATER. 

[Allotment  of  Water  on  Alternate  Days.] 

§  2259.  In  case  the  volume  of  water  in  said  stream  or 
river  shall  not  be  sufficient  to  supply  the  continual  wants 
of  the  entire  country  through  which  it  passes,  then  the 
county  judge  of  the  county  shall  appoint  three  commis- 


APPENDIX.  357 

sioners  as  hereinafter  provided,  whose  duty  it  shall  be  to 
apportion  in  a  just  and  equitable  proportion  a  certain 
amount  of  said  water  upon  certain  or  alternate  weekly  days 
to  different  localities,  as  they  may  in  their  judgment  think 
best  for  the  interests  of  all  parties  concerned,  and  with  due 
regard  to  the  legal  rights  of  all. 

This  section  seems  to  have  been  superseded  by  later  stat- 
utes as  to  the  appointment  and  duties  of  water  commission- 
ers. 

RESERVOIRS  AND  STORAGE  OF  WATER. 

[Right  of  Storage.] 

§  2270.  Persons  desirous  to  construct  and  maintain 
reservoirs  for  the  purpose  of  storing  water  shall  have  the 
right  to  take  from  any  of  the  natural  streams  of  the  state 
and  store  away  any  unappropriated  water  not  needed  for 
immediate  use  for  domestic  or  irrigating  purposes,  to  con- 
struct and  maintain  ditches  for  carrying  such  water  to  and 
from  such  reservoir,  and  to  condemn  lands  for  such  reser- 
voirs and  ditches  hi  the  same  manner  provided  by  law  for 
the  condemnation  of  land  for  right  of  way  for  ditches :  pro- 
vided, no  reservoir  with  embankments  or  a  dam  exceeding 
ten  feet  in  height  shall  be  made  without  first  submitting  the 
plans  thereof  to  the  county  commissioners  of  the  county  in 
which  it  is  situated,  and  obtaining  their  approval  of  such 
plans. 
[Use  of  Natural  Stream  for  Conducting  Water.] 

§  2271.  The  owners  of  any  reservoir  may  conduct  the 
water  therefrom  into  and  along  any  of  the  natural  streams 
of  the  state,  but  not  so  as  to  raise  the  waters  thereof  above 
ordinary  high-water  mark,  and  may  take  the  same  out  again 
at  any  point  desired,  without  regard  to  the  prior  rights  of 


358  LAW  OF  IRRIGATION. 

others  to  water  from  said  stream;  but  due  allowance  shall 
be  made  for  evaporation  and  scapage  [seepage],  the 
amount  to  be  determined  by  the  commissioners  of  irriga- 
tion of  the  district,  or,  if  there  are  no  such  commissioners, 
then  by  the  county  commissioners  of  the  county  in  which 
the  water  shall  be  taken  out  for  use. 

[Liability  of  Reservoir  Owner.] 

§  2272.  The  owners  of  the  reservoirs  shall  be  liable  for 
all  damages  arising  from  leakage  or  overflow  of  the  waters 
therefrom,  or  by  floods  caused  by  breaking  of  the  embank- 
ments of  such  reservoirs. 

DITCH  AND  RESB:RVOIK  COMPANIES. 
[Organization  of  Ditch  and  Reservoir  Companies.] 

3  Mills'  Ann.  St.  §  567.  When  any  three  or  more  persons 
associate  under  the  provisions  of  this  chapter  [chapter  30, 
"Corporations"]  to  form  a  corporation  for  the  purpose  of  con- 
structing a  ditch,  reservoir,  pipe  line,  or  any  thereof,  for  the 
purpose  of  conveying  water  from  any  natural  or  artificial 
stream,  channel  or  source  whatever,  to  any  mines,  mills  or 
lands,  or  storing  the  same,  they  shall,  in  their  certificate, 
in  addition  to  the  matters  required  in  section  2  of  this  chap- 
ter [i.  e.,  the  matters  required  of  all  corporations],  specify 
as  follows,  viz. :  The  stream,  channel  or  source  from 
which  the  water  is  to  be  taken ;  the  point  or  place  at  or  near 
which  the  water  is  to  be  taken  out;  the  location,  as  near  as 
may  be,  of  any  reservoir  intended  to  be  constructed;  the 
line,  as  near  as  may  be,  of  any  ditch  or  pipe  line  intended 
to  be  constructed;  and  the  use  to  which  the  water  is  intend- 
ed to  be  applied. 


APPENDIX.  359 

[Extension  of  Term  of  Incorporation.] 

3  Mills'  Ann.  St.  §  567a.  When  the  term  of  years  for 
which  any  corporation  which  has  been,  or  may  hereafter  be, 
incorporated  as  a  ditch  company  for  the  purpose  of  carry- 
ing water  for  irrigation  purposes,  or  as  a  reservoir  com- 
pany for  the  storage  of  water  for  irrigation  purposes,  has 
expired,  or  is  about  to  expire  by  lawful  limitation,  and 
such  corporation  has  not  been  administered  upon  as  an  ex- 
pired corporation,  or  gone  into  liquidation  and  settlement 
and  division  of  its  affairs,  it  may  have  its  term  of  incorpo- 
ration extended  and  continued,  the  same  as  if  originally 
incorporated,  as  hereinafter  provided. 

3  Mills'  Ann.  St.  §  56Ya.  This  section  prescribes  the 
mode  of  extending  the  life  of  the  corporation  by  vote  of  the 
stockholders. 

[Consolidation  of  Ditch  Companies.] 

§  5Y2.  Companies  organized  under  the  laws  of  this  state 
holding  ditches  or  canals  by  virtue  of  their  organization,  which 
derive  their  supply  of  water  for  their  respective  ditches  or 
canals  from  the  same  headgate  or  gates,  or  the  same  source 
or  sources  of  supply,  may  consolidate  their  interests  and 
unite  their  respective  companies  under  one  name  and  man- 
agement, by  filing  a  certificate  of  that  fact  in  the  office  of 
the  secretary  of  this  state,  and  a  counterpart  thereof  in  the 
office  of  the  recorder  of  the  county  or  counties  in  which 
such  ditches  or  canals  are  situated;  which  certificate  shall 
be  signed  by  the  presidents  of  the  companies  so  uniting,  with 
the  common  seals  of  the  companies  affixed  thereto,  and  shall 
set  forth  the  fact  of  such  union  of  interests,  and  give  the 
name  of  the  new  company  thus  formed. 


360  LAW  OF  IRRIGATION. 

[Levy  of  Assessments.] 

§  569.  Any  corporation  owning  any  ditch  or  canal  for 
conveying,  or  reservoir  for  storing,  water  for  irrigation 
purposes,  and  the  capital  stock  being  fully  subscribed  and 
paid  up,  and  when  such  corporation  shall  have  no  income 
sufficient  to  keep  its  ditch,  canal  or  reservoir  in  good  repair, 
such  corporation  shall  have  power  to  make  an  assessment 
on  the  capital  stock  thereof,  to  be  levied  pro  rata  on  all  the 
shares  of  stock,  payable  in  money  or  labor,  or  both,  for  the 
purpose  of  keeping  the  property  of  such  corporation  in  good 
repair,  and  for  the  payment  of  any  claim  against  such  cor- 
poration not  otherwise  provided  for.  But  no  such  assess- 
ment shall  be  made  unless  the  question  of  making  such 
assessment  shall  first  be  submitted  to  the  stockholders  of 
such  corporation  at  an  annual  meeting,  or  at  a  special  meet- 
ing called  for  that  purpose,  and  a  majority  of  the  stock- 
holders, either  in  person  or  by  proxy,  voting  thereon,  shall 
vote  in  favor  of  making  such  assessments,  and  an  action 
may  be  maintained  to  recover  any  assessment  against  any 
delinquent  shareholder,  as  provided  in  section  five  (5) 
[Mills'  Ann.  St.  §  480]  of  this  act. 

[Eight  of  Way  for  Ditch  Companies.] 

3  Mills'  Ann.  St.  §  568.  Any  ditch,  reservoir  or  pipe- 
line company  formed  under  the  provisions  of  this  chapter 
[on  corporations]  shall  have  the  right  of  way  over  the  line 
named  in  the  certificate,  and  shall  also  have  the  right  to 
run  water  from  the  stream,  channel  or  watercourse,  wheth- 
er natural  or  artificial,  named  in  the  certificate,  through 
its  ditch  or  pipe  line,  and  store  the  same  in  any  reservoir 
of  the  company  when  not  needed  for  immediate  use:  pro- 
vided, that  the  line  proposed  shall  not  interfere  with  any 


APPENDIX.  361 

other  ditch,  pipe  line  or  reservoir  having  prior  rights,  ex- 
cept the  right  to  cross  by  pipe  or  flume;  nor  shall  the  water 
of  any  stream,  channel  or  other  watercourse,  whether  nat- 
ural or  artificial,  be  diverted  from  its  original  channel  or 
source,  to  the  detriment  of  any  person  or  persons  having 
priority  of  right  thereto,  but  this  shall  not  be  construed  to 
prevent  the  appropriation  and  use  of  any  water  not  there- 
tofore utilized  and  applied  to  beneficial  uses. 

[Construction  of  Works.] 

§  5Y3.  Any  company  formed  under  the  provisions  of  this 
act  for  the  purpose  of  constructing  any  ditch,  flume  *  '• 
shall,  within  ninety  days  from  the  date  of  their  certificate, 
commence  work  on  such  ditch,  flume  *  *  *  as  shall  be 
named  in  the  certificate,  and  shall  prosecute  the  work  with 
due  diligence  until  the  same  is  completed,  and  the  time  of 
completion  of  any  such  ditch  *  '  *  shall  not  be  extended 
beyond  a  period  of  two  years  from  the  time  work  was  com- 
menced as  aforesaid;  and  any  company  failing  to  commence 
work  within  ninety  days  from  the  date  of  the  certificate,  or 
failing  to  complete  the  same  within  two  years  from  the 
time  of  commencement  as  aforesaid,  shall  forfeit  all  right 
to  the  water  so  claimed,  and  the  same  shall  be  subject  to  be 
claimed  by  any  other  company ;  the  time  for  the  completion 
of  any  flume  constructed  under  the  provisions  of  this  act 
shall  not  be  extended  beyond  a  period  of  four  years:  pro- 
vided, this  section  shall  not  apply  to  any  ditch  or  flume 
*  constructed  through  and  upon  any  grounds  owned 
by  the  corporation:  and  provided,  further,  that  any  com- 
pany formed  under  the  provisions  of  this  act  to  construct  a 
ditch  for  domestic,  agricultural,  irrigating  *  *  *  pur- 
poses, or  any  or  either  thereof,  shall  have  three  years  from 


362  LAW  OF  IRRIGATION. 

the  time  of  commencing  work  thereon  within  which  to  com- 
plete the  same,  but  no  longer. 

[Ditch  Company  must  Keep  Ditch  in  Good  Condition.] 

§  571.  Every  ditch  company  organized  under  the  pro- 
visions of  this  act  shall  be  required  to  keep  their  ditch  in 
good  condition,  so  that  the  water  shall  not  be  allowed  to  es- 
cape from  the  same  to  the  injury  of  any  mining  claim,  road, 
ditch  or  other  property ;  and  whenever  it  is  necessary  to  con- 
vey any  ditch  over,  across,  or  above  any  lode  or  mining 
claim,  or  to  keep  the  water  so  conveyed  therefrom,  the  com- 
pany shall,  if  necessary  to  keep  the  water  of  said  ditch  out 
or  from  any  claim,  flume  the  ditch  so  far  as  necessary  to 
protect  such  claim  or  property  from  the  water  of  said  ditch. 

[Duty  to  Furnish  Water  to  Consumers.] 

§  570.  Any  company  constructing  a  ditch  under  the  pro- 
visions of  this  act  shall  furnish  water  to  the  class  of  per- 
sons using  the  water  in  the  way  named  in  the  certificate, 
in  the  way  the  water  is  designated  to  be  used,  whether  min- 
ers, mill  men,  farmers  or  for  domestic  use,  whenever  they 
shall  have  water  in  their  ditch  unsold,  and  shall  at  all  times 
give  the  preference  to  use  of  the  water  in  said  ditch  to  the 
class  named  in  the  certificate;  the  rates  at  which  water  shall 
be  furnished  to  be  fixed  by  the  county  commissioners  as 
soon  as  such  ditch  shall  be  completed  and  prepared  to  fur- 
nish water. 

[Right  of  Consumer  to  Continue  Purchasing  Water.] 

§  2297.  Any  person  or  persons,  acting  jointly  or  sever- 
ally, who  shall  have  purchased  and  used  water  for  irriga- 
tion for  lands  occupied  by  him,  her  or  them,  from  any  ditch 
or  reservoir,  and  shall  not  have  ceased  to  do  so,  for  the  pur- 


APPENDIX.  363 

pose  or  with  intent  to  procure  water  from  some  other 
source  of  supply,  shall  have  a  right  to  continue  to  purchase 
water  to  the  same  amount  for  his,  her  or  their  lands,  on  pay- 
ing or  tendering  the  price  thereof  fixed  by  the  county  com- 
missioners as  ahove  provided,  or,  if  no  price  shall  have  been 
fixed  by  them,  the  price  at  which  the  owners  of  such  ditch 
or  reservoir  may  be  then  selling  water,  or  did  sell  water 
during  the  then  last  preceding  year.  This  section  shall  not 
apply  to  the  case  of  those  who  may  have  taken  water  as 
stockholders  or  shareholders  after  they  shall  have  sold  or 
forfeited  their  shares  or  stock,  unless  they  shall  have  re- 
tained a  right  to  procure  such  water  by  contract,  agreement 
or  understanding  and  use  between  themselves  and  the  own- 
ers of  such  ditch,  and  not  then  to  the  injury  of  other  pur- 
chasers of  water  from  or  shareholders  in  [the]  same  ditch. 

REGULATION  OF  WATER  RATES. 

Pursuant  to  the  constitutional  provision  [article  16,  §  8], 
an  act  was  passed  in  1879  providing  for  the  regulation  of 
water  rates  by  the  county  commissioners  [Mills'  Ann.  St. 
§§  2295,  2296].  These  provisions  appear  to  have  been 
superseded,  in  the  main  at  least,  by  the  act  of  1887,  which 
provides  as  follows: 

[County  Commissioners  to  Hear  and  Consider  Applications.] 

§  2298.  The  county  commissioners  of  each  county  shall 
at  their  regular  sessions  in  each  year,  and  at  such  other 
sessions  as  they  in  their  discretion  may  deem  proper,  in  view 
of  the  irrigation  and  harvesting  season,  and  the  convenience 
of  all  parties  interested,  hear  and  consider  all  applications 
which  may  be  made  to  them  by  any  party  or  parties  inter- 
ested, either  in  furnishing  and  delivering  for  compensation 


364  LAW  OP  IRRIGATION. 

in  any  manner,  or  in  procuring  for  such  compensation,  water 
for  irrigation,  mining,  milling,  manufacturing  or  domestic 
purposes,  from  any  ditch,  canal,  conduit  or  reservoir,  the 
whole  or  any  part  of  which  shall  lie  in  such  county.  Which 
application  shall  be  supported  by  such  affidavits  as  the  ap-- 
plicant  or  applicants  may  present,  showing  reasonable  cause 
for  such  board  of  county  commissioners  to  proceed  to  fix  a 
reasonable  maximum  rate  of  compensation  for  water  to  be 
thereafter  delivered  from  such  ditch,  canal,  conduit  or  reser- 
voir within  such  county. 

[Appointment  of  Day  for  Hearing.] 

§  2299.  Every  such  board  of  commissioners  shall,  upon 
examination  of  such  affidavit  or  affidavits,  or  from  the  oaths 
of  witnesses  in  addition  thereto,  if  they  find  that  the  facts 
sworn  to  show  the  application  to  be  in  good  faith,  and  that 
there  are  reasonable  grounds  to  believe  that  unjust  rates  of 
compensation  are,  or  are  likely  to  be,  charged  or  demanded 
for  water  from  such  ditch,  canal,  conduit  or  reservoir,  shall 
enter  an  order  fixing  a  day  not  sooner  than  twenty  days 
thereafter,  nor  later  than  the  third  day  of  the  next  regular 
session  of  their  board,  when  they  shall  hear  all  parties  in- 
terested in  such  ditch,  or  other  waterworks  as  aforesaid,  or 
in  procuring  water  therefrom,  for  any  of  the  said  uses, 
as  well  as  all  documentary  or  oral  evidence  or  depositions, 
taken  according  to  law,  touching  the  said  ditch,  or  other 
work  as  aforesaid,  and  the  cost  of  furnishing  water  there- 
from. 

[Commissioners  to  Fix  Rates.] 

§  2300.  At  the  time  so  fixed,  all  persons  interested  as 
aforesaid,  on  either  side  of  the  controversy,  in  lands  which 


APPENDIX.  355 

may  be  irrigated  from  such  ditch,  or  other  work  aforesaid, 
may  appear  by  themselves,  their  agents  or  attorneys,  and 
said  commissioners  shall  then  proceed  to  take  action  in  the 
matter  of  fixing  such  rates  of  compensation  for  the  delivery 
of  water.  [This  section  further  provides  that  the  appli- 
cant or  applicants  shall  give  notice  of  the  hearing  to  inter- 
ested parties,  and  provides  also  for  the  taking  of  depositions 
to  be  used  before  the  commissioners.] 

[Postponement  of  Hearing— Witnesses— Order  of  Board.] 

§  2301.  Said  board  of  commissioners  may  adjourn  or 
postpone  any  hearing  from  time  to  time,  as  may  be  found 
necessary  for  the  convenience  of  parties,  or  of  public  busi- 
ness; and  they  shall  hear  and  examine  all  legal  testimony 
or  proofs  offered  by  any  party  interested  as  aforesaid,  as 
well  concerning  the  original  cost  and  present  value  of 
works  and  structures  of  such  ditch,  canal,  conduit  or  reser- 
voir, as  the  cost  and  expense  of  maintaining  and  operating 
the  same,  and  all  matters  which  may  affect  the  establishing 
of  a  reasonable  maximum  rate  of  compensation  for  water  to 
be  furnished  and  delivered  therefrom;  and  they  may  issue 
subpoenas  for  witnesses,  which  subpoenas  shall  be  served  by 
the  sheriff  of  the  county,  who  shall  receive  the  lawful  fees 
for  all  such  service;  and  said  board  may  also  issue  a  sub- 
poena for  the  production  of  all  books  and  papers  required 
for  evidence  before  them.  Upon  hearing  and  considering  all 
the  evidence  and  facts,  and  matters  involved  in  the  case, 
said  board  of  commissioners  shall  enter  an  order  describing 
the  ditch,  canal,  conduit,  reservoir  or  other  work  in  ques- 
tion with  sufficient  certainty,  and  fixing  a  just  and  reason- 
able maximum  rate  of  compensation  for  water  to  be  there- 
after delivered  from  such  ditch  or  other  work  as  last  afore- 


366  LAW  OF  IRRIGATION. 

said,  within  the  county  in  which  such  commissioners  act, 
and  such  rate  shall  not  be  changed  within  two  years  from 
the  time  when  they  shall  be  so  fixed,  unless  upon  good  cause 
shown.  The  district  court  of  the  proper  county,  or  the 
judge  thereof  in  vacation,  may,  in  case  of  refusal  to  obey 
the  subpoena  of  the  board  of  county  commissioners,  compel 
obedience  thereto,  or  punish  for  refusal  to  obey,  after  hear- 
ing, as  in  cases  of  attachment,  for  contempt  of  such  district 
court. 

[False  Swearing.] 

§  2302.  False  swearing  in  the  above  proceedings  is  de- 
clared by  this  section  to  be  perjury,  and  punishable  accord- 
ingly. 

ANTI-ROYALTY   ACT. 
[Royalties  Prohibited.] 

§  2304.  It  shall  not  be  lawful  for  any  person  owning 
or  controlling,  or  claiming  to  own  or  control,  any  ditch, 
canal  or  reservoir,  carrying  or  storing,  or  designed  for  the 
carrying  or  storing,  of  any  water  taken  from  any  natural 
stream  or  lake  within  this  state,  to  be  furnished  or  delivered 
for  compensation,  for  irrigation,  mining,  milling  or  domes- 
tic purposes,  to  persons  not  interested  in  such  ownership  or 
control,  to  demand,  bargain  for,  accept  or  receive,  from  any 
person  who  may  apply  for  water  for  any  of  the  aforesaid 
purposes,  any  money  or  other  valuable  thing  whatsoever,  or 
any  promise  or  agreement  therefor,  directly  or  indirectly, 
as  royalty,  bonus  or  premium  prerequisite  or  condition  pre- 
cedent to  the  right  or  privilege  of  applying  or  bargaining 
for  or  procuring  such  water.  But  such  water  shall  be  fur- 
nished, carried  and  delivered  upon  the  payment  or  tender  of 


APPENDIX.  367 

the  charges  fixed  by  the  county  commissioners  of  the  proper 
county,  as  is  or  may  be  provided  by  law.  Any  and  all 
moneys,  and  every  valuable  thing  or  consideration  of  what- 
soever kind  which  shall  be  so,  as  aforesaid,  demanded, 
charged,  bargained  for,  accepted,  received  or  retained,  con- 
trary to  the  provisions  of  this  section,  shall  be  deemed  and 
held  an  additional  and  corrupt  rate,  charge  or  consideration 
for  the  water  intended  to  be  furnished  and  delivered  there- 
for, or  because  thereof,  and  wholly  extortionate  and  illegal ; 
and  when  paid,  delivered  o'r  surrendered  may  be  recovered 
back  by  the  party  ^or  parties  paying,  delivering  or  surrender- 
ing the  same  from  the  party  to  whom  or  for  whose  use  the 
same  shall  have  been  paid,  delivered  or  surrendered,  together 
with  costs  of  suit,  including  reasonable  fees  of  attorneys  of 
plaintiff,  by  proper  action  in  any  court  having  jurisdiction. 

[Penalty  for  Collecting  Excessive  Rate.] 

§  2305.  Every  person  owning  or  controlling,  or  claim- 
ing to  own  or  control,  any  ditch,  canal  or  reservoir,  such  -as 
is  mentioned  in  the  first  section  of  this  act  [section  2304], 
who  shall,  after  demand  in  writing  made  upon  him  for  the 
supply  or  delivery  of  water  for  irrigation,  mining,  milling 
or  domestic  purposes,  to  be  delivered  from  the  canal,  ditch 
or  reservoir  owned,  possessed  or  controlled  by  him,  and  af- 
ter tender  of  the  lawful  rate  of  compensation  therefor,  in 
lawful  money,  (*)  demand,  require,  bargain  for,  accept, 
receive  or  retain  from  the  party  making  such  application, 
any  money  or  other  thing  of  value,  or  any  promise  or  con- 
tract or  any  valuable  consideration  whatever,  as  such  roy- 
alty, bonus,  premium,  prerequisite  or  condition  precedent, 
as  is  by  the  provisions  of  the  said  first  section  of  this  act 
prohibited,  shall  be  deemed  guilty  of  a  misdemeanor,  and, 


368  LAW  OF  IRRIGATION. 

on  conviction  thereof,  shall  be  punished  by  fine  of  not  less 
than  one  hundred  dollars,  nor  more  than  five  thousand  dol- 
lars, or  imprisonment  for  a  term  not  less  than  three  months, 
nor  more  than  one  year,  or  both  such  fine  and  imprisonment, 
in  the  discretion  of  the  court. 

[Refusal  to  Deliver  Water— Penalty.] 

§  2306.  [This  section  is  the  same  as  the  preceding  sec- 
tion down  to  (*),  and  continues  as  follows]:  Refuse  to 
furnish  or  carry  and  deliver  from  such  ditch,  canal  or  reser- 
voir, any  water  so  applied  for,  which  water  can  or  may  be, 
by  use  of  reasonable  diligence  in  that  behalf,  and  within 
the  carrying  or  storage  capacity  of  such  ditch,  canal  or  res- 
ervoir, be  lawfully  furnished  and  delivered,  without  in- 
fringement of  prior  rights,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  upon  conviction  thereof  shall  be  punished 
by  [same  penalty  as  in  preceding  section]. 

[Prosecution  by  Attorney  General  for  Refusal  to  Deliver  Water.] 

§  2307.  When  any  corporation,  in  defiance  or  by  at- 
tempted evasion  of  the  provisions  of  this  act,  shall,  after  ten- 
der of  the  compensation  hereinbefore  provided  for,  refuse  to 
deliver  water,  such  as  is  mentioned  in  the  third  section  of 
this  act,  to  any  person  lawfully  entitlejd  to  apply  therefor, 
it  shall  be  the  duty  of  the  attorney  general,  upon  request 
of  the  county  commissioners  of  the  proper  county,  or  upon 
his  otherwise  receiving  due  notice  thereof,  to  institute  and 
prosecute  to  judgment  and  final  determination  proceedings 
in  quo  warranto  for  the  forfeiture  of  the  corporate  rights, 
privileges  and  franchises  of  any  such  corporation  so  offend- 
ing, or  by  mandamus  or  other  proper  proceedings  to  compel 
it  to  its  duty  in  that  behalf. 


APPENDIX.  369 

[Who  Liable  for  Violation  of  Act.] 

§  2308.  The  word  "person,"  as  used  in  this  act,  shall  in- 
clude corporations  and  associations,  and  the  plural  as  well  as 
the  singular  number.  And  every  officer  of  a  corporation, 
or  member  of  an  association  or  co-ownership,  and  every 
agent  violating  any  of  the  provisions  of  this  act,  shall  be  lia- 
ble to  restore  the  unlawful  consideration  extorted,  and  be 
punishable  under  the  penal  provisions  of  this  act,  the  same  as 
if  the  thing  done  in  disobedience  to  its  provisions  were  done 
for  his  own  sole  benefit  and  advantage. 

MEASUREMENT  OF  WATER. 
[State  Engineer  Required  to  Measure  Flow  of  Streams.] 

§  2459.  The  state  engineer  is  required  to  "make  or 
cause  to  be  made  careful  measurements  of  the  flow  of  the 
public  streams  of  the  state  from  which  water  is  diverted  for 
any  purpose,  and  compute  the  discharge  of  the  same." 

[Measurement  of  Canals,  Dams,  etc.] 

§  2462.  The  state  engineer  shall,  on  request  of  any 
party  interested,  and  on  payment  of  his  per  diem  charges 
and  reasonable  expenses,  appoint  a  deputy  to  measure,  com- 
pute and  ascertain  all  necessary  data  of  any  canal,  dam,  reser- 
voir or  other  construction,  as  required  or  as  may  be  desired 
to  establish  court  decrees,  or  for  filing  statements,  in  com- 
pliance with  law,  in  the  county  clerk's  records. 

[Owners  of  Ditches  may  be  Required  to  Construct  Weirs.] 

§  2466.  For  the  more  accurate  and  convenient  meas- 
urement of  any  water  appropriated  pursuant  to  any  judg- 
ment or  decree  rendered  by  any  court  establishing  the  claims 
of  priority  of  any  ditch,  canal  or  reservoir,  the  owners  there- 
of may  be  required  by  the  state  engineer  to  construct  and 


370  LAW  OF  IRRIGATION. 

maintain,  under  the  supervision  of  the  state  engineer,  a 
measuring  weir  or  other  device  for  measuring  the  flow  of  the 
water  at  the  head  of  such  ditch,  canal  or  reservoir,  or  as 
near  thereto  as  practicable.  The  state  engineer  shall  compute, 
and  arrange  in  tabular  form,  the  amount  of  water  that  will 
pass  such  weir  or  measuring  device  at  the  different  stages 
thereof,  and  he  shall  furnish  a  copy  of  a  statement  thereof  to 
any  water  superintendents  or  commissioners  having  control 
of  such  ditch,  canal  or  reservoir. 

[Unit  of  Measurements.] 

§  2467.  The  state  engineer  shall  use,  in  all  his  calcula- 
tions, measurements,  records  and  reports,  the  cubic  foot  per 
second  as  the  unit  of  measurement  of  flowing  water,  and  the 
cubic  foot  as  the  unit  of  measurement  of  volume. 

[Unit  of  Measurement  of  Water  Sold.l 

§  4643.  Water  sold  by  the  inch  by  any  individual  or 
corporation  shall  be  measured  as  follows,  towit:  Every 
inch  shall  be  considered  equal  to  an  inch-square  orifice  under 
a  five-inch  pressure,  and  a  five-inch  pressure  shall  be  from 
the  top  of  the  orifice  of  the  box  put  into  the  banks  .of  the 
ditch  to  the  surface  of  the  water;  said  boxes,  or  any  slot  or 
aperture  through  which  such  water  may  be  measured,  shall 
in  all  cases  be  six  inches  perpendicular,  inside  measurement, 
except  boxes  delivering  less  than  twelve  inches,  which  may  be 
square,  with  or  without  slides ;  all  slides  for  the  same  shall 
move  horizontally,  and  not  otherwisej  and  said  box  put 
into  the  banks  of  ditch  shall  have  a  descending  grade  from 
the  water  in  ditch  of  not  less  than  one-eighth  of  an  inch  to 
the  foot. 


APPENDIX.  371 

OFFENSES. 

[Injuring  Ditch,  Stealing  Water,  etc.] 

§  2393.  Any  person  or  persons  who  shall  knowingly 
and  willfully  cut,  dig,  break  down  or  open  any  gate,  bank, 
embankment  or  side  of  any  ditch,  canal,  flume,  feeder  or 
reservoir  in  which  such  person  or  persons  may  be  a  joint 
owner,  or  the  property  of  another,  or  in  the  lawful  posses- 
sion of  another  or  others,  and  used  for  the  purpose  of  irri- 
gation, manufacturing,  mining  or  domestic  purposes,  with 
intent  maliciously  to  injure  any  person,  association  or  cor- 
poration, or  for  his  or  her  own  gain,  unlawfully,  with  intent 
of  stealing,  taking  or  causing  to  run  or  pour  out  of  such 
ditch,  canal,  reservoir,  feeder  or  flume,  any  water  for  his  or 
her  own  profit,  benefit  or  advantage,  to  the  injury  of  any 
other  person,  persons,  association  or  corporation,  lawfully  in 
the  use  of  such  water  or  of  such  ditch,  canal,  reservoir, 
feeder  or  flume,  he,  she  or  they  so  offending  shall  be  deemed 
guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall  be 
fined  in  any  sum  not  less  than  five  dollars  nor  more,  than 
three  hundred  dollars,  and  may  be  imprisoned  in  the  county 
jail  not  exceeding  ninety  days. 

§  2394.  Justices  of  the  peace  are  given  jurisdiction  of 
offenses  under  the  preceding  section. 

[Interfering  with  Headgate.] 

§  2385.  Every  person  who  shall  willfully  open,  close, 
change  or  interfere  with  any  headgate  or  water  box,  without 
authority,  shall  be  guilty  of  a  misdemeanor,  and  on  convic- 
tion thereof  shall  be  fined  not  less  than  fifty  dollars,  nor 
more  than  three  hundred  dollars,  and  may  be  imprisoned 
not  exceeding  sixty  days. 


372  LAW  OF  IRRIGATION. 

MISCELLANEOUS  PROVISIONS. 

[Conveyance  of  Water  Rights.] 

3  Mills'  Ann.  St.  §  42 7a.  In  the  conveyance  of  water 
rights  hereafter  made  in  this  state  in  all  cases  except  where 
the  ownership  of  stock  in  ditch  companies  or  other  companies 
constitute  the  ownership  of  a  water  right,  the  same  formali- 
ties shall  be  observed  and  complied  with  as  in  the  convey- 
ance of  real  estate. 

[Taxation  of  Ditches,  etc.] 

§  2397.  All  ditches  used  for  the  purpose  of  irrigation, 
and  that  only  where  the  water  is  not  sold  for  the  purpose 
of  deriving  a  revenue  therefrom,  be  and  the  same  are  here- 
by declared  free  from  all  taxation,  whether  for  state,  county 
or  municipal  purposes.  [See,  also,  section  3766,  identical 
with  Const,  art.  10,  §  3.] 

[Cities  and  Towns  as  Owners  of  Water  Rights  and  Ditches.] 

By  several  acts,  cities  and  towns  have  been  empowered 
to  purchase  water  rights  and  to  construct  or  purchase  ditch, 
etc.,  and  to  regulate  and  control  the  distribution  of  water 
for  irrigation  and  other  purposes.  [Sections  4403,  4539, 
4540;  3  Mills'  Ann.  St.  §§  4540a-4540c.] 


IDAHO. 

CONSTITUTIONAL  PROVISIONS. 

[Use  of  Water  for  Sale,  etc.,  a  Public  Use.] 

Art.  15,  §  1.  The  use  of  all  waters  now  appropriated, 
or  that  may  hereafter  be  appropriated,  for  sale,  rental  or 
distribution,  also  of  all  water  originally  appropriated  for 
private  use,  but  which,  after  such  appropriation,  has  hereto- 
fore been,  or  may  hereafter  be,  sold,  rented  or  distributed, 
is  hereby  declared  to  be  a  public  use,  and  subject  to  the  reg- 
ulation and  control  of  the  state  in  the  manner  prescribed 
by  law. 

[Right  to  Collect  Water  Rates  a  Franchise.] 

§  2.  The  right  to  collect  rates  or  compensation  for  the 
use  of  water  supplied  to  any  county,  city  or  town,  or  water 
district,  or  the  inhabitants  thereof,  is  a  franchise,  and  can- 
not be  exercised  except  by  authority  of  and  in  the  manner 
prescribed  by  law. 

[Right  to  Appropriate  Water— Priority.] 

§  3.  The  right  to  divert  and  appropriate  the  unappro- 
priated waters  of  any  natural  stream  to  beneficial  uses  shall 
never  be  denied.  Priority  of  appropriation  shall  give  the 
better  right  as  between  those  using  the  water ;  but  when  the 
waters  of  any  natural  stream  are  not  sufficient  for  the  serv- 
ice of  all  those  desiring  the  use  of  the  same,  those  using 


374  LAW  OF  IRRIGATION. 

the  water  for  domestic  purposes  shall  (subject  to  such  limi- 
tations as  may  be  prescribed  by  law)  have  the  preference 
over  those  claiming  for  any  other  purpose;  and  those  using 
the  water  for  agricultural  purposes  shall  have  preference 
over  those  using  the  same  for  manufacturing  purposes.  And 
in  any  organized  mining  district,  those  using  the  water  for 
mining  purposes,  or  milling  purposes  connected  with  min- 
ing, shall  have  preference  over  those  using  the  same  for 
manufacturing  or  agricultural  purposes.  But  the  usage  by 
such  subsequent  appropriators  shall  be  subject  to  such  pro- 
visions of  law  regulating  the  taking  of  private  property  for 
public  and  private  use  as  referred  to  in  section  fourteen  of 
article  one  of  this  constitution.  [See  post.] 

[Right  to  Continue  Use  of  Water.] 

§  4.  Whenever  any  waters  have  been  or  shall  be  appro- 
priated or  used  for  agricultural  purposes  under  a  sale,  rental 
or  distribution  thereof,  such  sale,  rental  or  distribution  shall 
be  deemed  an  exclusive  dedication  to  such  use;  and  when- 
ever such  waters  so  dedicated  shall  have  once  been  sold, 
rented  or  distributed  to  any  person  who  has  settled  upon  or 
improved  land  for  agricultural  purposes  with  a  view  of  re- 
ceiving the  benefit  of  such  water  under  such  dedication,  such 
person,  his  heirs,  executors,  administrators,  successors  or 
assigns  shall  not  thereafter,  without  his  consent,  be  deprived 
of  the  annual  use  of  the  same,  when  needed  for  domestic 
purposes,  or  to  irrigate  the  land  so  settled  upon  or  improved, 
upon  payment  therefor,  and  compliance  with  such  equitable 
terms  and  conditions  as  to  the  quantity  used  and  times  of 
use  as  may  be  prescribed  by  law. 


APPENDIX.  375 

[Regulation  of  Priorities.] 

§  5.  Whenever  more  than  one  person  has  settled  upon 
or  iriiproved  land  with  a  view  of  receiving  water  for  agri- 
cultural purposes,  under  a  sale,  rental  or  distribution  there- 
of, as  in  the  last  preceding  section  of  this  article  provided, 
as  among  such  persons,  priority  in  time  shall  give  superiori- 
ty of  right  to  the  use  of  such  water  in  the  numerical  order 
of  such  settlements  or  improvements ;  but  whenever  the  sup- 
ply of  such  water  shall  not  be  sufficient  to  meet  the  demands 
of  all  those  desiring  to  use  the  same,  such  priority  of  right 
shall  be  subject  to  such  reasonable  limitations  as  to  the 
quantity  of  water  used  and  times  of  use  as  the  legislature, 
having  due  regard  both  to  such  priority  of  right  and  the 
necessity  of  those  subsequent  in  time  of  settlement  or  im- 
provement, may  by  law  prescribe. 

[Legislature  to  Provide  Mode  of  Fixing  Rates.] 

§  6.  The  legislature  shall  provide  by  law  the  manner 
in  which  reasonable  maximum  rates  may  be  established  to 
be  charged  for  the  use  of  water  sold,  rented  or  distributed 
for  any  useful  or  beneficial  purpose. 

[Eminent  Domain.] 

Art.  1,  §  14.  The  necessary  use  of  lands  for  the  con- 
struction of  reservoirs  or  storage  basins,  for  the  purposes  of 
irrigation,  or  for  rights  of  way  for  the  construction  of  canals, 
ditches,  flumes  or  pipes  to  convey  water  to  the  place  of  use, 
for  any  useful,  beneficial  or  necessary  purpose,  *  or 

any  other  use  necessary  to  the  complete  development  of  the 
material  resources  of  the  state,  or  the  preservation  of  the 
health  of  its  inhabitants,  is  hereby  declared  to  be  a  public 
use,  and  subject  to  the  regulation  and  control  of  the  state. 


376  LAW  OF  IRRIGATION. 

Private  property  may  be  taken  for  public  use,  but  not  until 
a  just  compensation,  to  be  ascertained  in  a  manner  pre- 
scribed by  law,  shall  be  paid  therefor. 

STATUTORY  PROVISIONS. 

The  Revised  Statutes  of  1887  contain  a  system  of  irriga- 
tion law  set  forth  in  three  chapters,  the  first,  relating  to 
water  rights  generally,  being  practically  a  copy  of  the  pro- 
visions of  the  California  Civil  Code  [sections  3155-3167]. 
The  other  chapters  relate  to  the  acquisition  of  a  right  of  way 
for  ditches,  etc.,  the  rights  and  duties  of  the  appropriators, 
and  the  distribution  of  water  by  water  masters  [sections 
3180-3190,  3200-3205].  Most  of  these  provisions  seem  to 
have  been  repealed  or  superseded  by  later  acts,  especially 
those  found  in  the  Session, Laws  of  1895  and  1899.  In  view 
of  the  fact  that  the  legislation  on  the  subject  of  irrigation 
seems  to  be  in  a  somewhat  unsettled  condition,  it  is  not 
deemed  advisable  to  set  out  the  various  acts.  The  act  of 
February  25,  1899  [Laws  1899,  p.  380],  entitled  "An  act 
providing  for  the  appropriation  and  distribution  of  water; 
the  condemnation  of  lands  for  canals,  ditches  and  conduits; 
empowering  the  boards  of  county  commissioners  to  establish 
a  maximum  rate  for  the  use  of  water ;  and  repealing  all  acts 
and  parts  of  acts  in  conflict  with  the  provisions  of  this  act," 
seems  intended  to  provide  a  complete  system  of  irrigation 
law,  based  on  the  doctrine  of  appropriation.  Its  general 
provisions  as  to  the  right  of  appropriation,  procedure  of  ap- 
propriation, by  posting  a  notice,  etc.,  the  establishment  of 
rates,  the  rights  and  duties  of  appropriators  and  of  irriga- 
tion companies,  etc.,  are  very  similar  to  those  of  other  states, 
particularly  California  and  Colorado.  Statutes  provide 
also  for  the  organization  of  irrigation  districts. 


KANSAS. 

The  constitution  of  this  state  contains  no  provision  on  the 
subject  of  irrigation.  By  the  act  of  1885  and  subsequent 
acts,  particularly  those  of  1886  and  1891,  a  system  of  irri- 
gation law  more  or  less  complete  has  been  adopted.  In  re- 
spect to  the  right  of  appropriation,  the  doctrine  of  priority, 
the  rights  and  duties  of  appropriators  and  ditch  owners,  of- 
fenses and  the  distribution  of  water  by  public  carriers,  the 
statutes  are  very  similar  to  those  of  Colorado.  There  are 
no  provisions,  however,  for  the  division  of  the  state  into  water 
districts  and  divisions,  or  the  appointment  of  public  officers 
other  than  a  water  bailiff,  to  regulate  and  control  the  use  of 
water  for  irrigation.  It  is  deemed  sufficient  to  present  here 
only  an  outline  of  the  statutes,  special  attention  being  given 
to  those  provisions  peculiar  to  the  state.  The  statutes  com- 
prise sections  3499  to  3642  of  the  General  Statutes  of  1899. 

APPROPRIATION  OF  WATER. 

§§  3501-3505.  The  general  provisions  as  to  the  right  to 
appropriate  water,  and  the  procedure  of  appropriation  by 
posting  a  notice,  etc.,  are  practically  the  same  as  those  of 
California. 

[Appropriation  and  Diversion   of  Water   West  of  Ninety-Ninth 
Meridian.] 

§  3519.  In  all  that  portion  of  the  state  of  Kansas  sit- 
uated west  of  the  ninety-ninth  meridian,  all  natural  waters, 
whether  standing  or  running,  and  whether  surface  or  sub- 


378  LAW  OF  IRRIGATION. 

terranean,  shall  be  devoted,  first,  to  purposes  of  irrigation 
in  aid  of  agriculture,  subject  to  ordinary  domestic  uses,  and, 
second,  to  other  industrial  purposes,  and  may  fee  diverted 
from  natural  beds,  basins  or  channels  for  such  purposes  and 
uses:  provided,  that  no  such  diversion  shall  interfere  with, 
diminish  or  divest  any  prior  vested  right  of  appropriation 
for  the  same  or  a  higher  purpose  than  that  for  which  such 
diversion  is  sought  to  be  made,  without  the  due  legal  con- 
demnation of  and  compensation  for  the  same ;  and  natural 
lakes  and  ponds  of  surface  water,  having  no  outlet,  shall  be 
deemed  parcel  of  the  lands  whereon  the  same  may  be  sit- 
uated, and  only  the  proprietors  of  such  lands  shall  be  enti- 
tled to  draw  off  or  appropriate  the  same. 

[Extent  of  Right  Acquired  by  Appropriation.] 

§  3520.  The  appropriation  of  water  hereafter  shall  in 
every  case  be  deemed  and  be  taken  to  be  accomplished  and  ef- 
fectual only  as  to  so  much  water  as  shall  have  been  actually 
applied  to  beneficial  uses  within  a  reasonable  time  after  the 
commencement  of  the  works  by  means  of  which  such  appro- 
priation is  intended  to  be  made,  or  afterwards,  where  no  ap- 
propriation has  in  the  meantime  been  initiated  by  others,  to- 
gether with  the  reasonable  amount  necessary  to  supply 
losses  by  waste,  seepage  and  evaporation.  All  the  residue 
of  the  water  within  the  capacity  of  the  canal  or  other  works 
shall  be  deemed  to  be  derelict,  and  liable  to  appropriation 
by  any  subsequent  appropriator. 

[Subterranean  Waters.] 

§  3523.  Waters  flowing  in  well-defined  subterranean 
channels  and  courses,  or  flowing  or  standing  in  subterranean 
sheets  or  lakes,  shall  be  subject  to  appropriation  with  the 


APPENDIX.  379 

same  effect  as  the  water  of  superficial  channels ;  and  no  per- 
son shall  be  allowed,  by  drains,  ditches,  fountains,  subter- 
ranean galleries  or  other  works,  to  collect  and  divert  per- 
colating waters  manifestly  supplying  such  subterranean  sup- 
plies, to  the  prejudice  of  any  prior  appropriator  thereof. 
[The  section  concludes  with  provisos  excepting  certain 
cases  of  diversion  of  percolating  waters  from  the  prohibition 
of  the  statute.] 

§  3524.  ~No  person  shall  be  permitted  to  take  or  appro- 
priate the  waters  of  any  subterranean  supply  which  naturally 
discharges  into  any  superficial  stream,  to  the  prejudice  of 
any  prior  appropriator  of  the  water  of  such  superficial  chan- 
nel. 

Appropriation  by  Means  of  Artesian  Wells.] 

§  3525.  Every  person  complying  with  the  provisions  of 
this  act,  and  applying  the  waters  obtained  by  means  of  any 
artesian  well  to  beneficial  uses,  shall  be  deemed  to  have  ap- 
propriated such  water  to  the  extent  to  which  the  same  shall 
be  so  applied  within  a  reasonable  time  after  the  commence- 
ment of  the  work,  and  such  appropriation  shall  have  effect 
as  of  the  day  of  commencement  of  such  works,  provided  the 
same  is  prosecuted  with  reasonable  diligence;  otherwise, 
from  the  time  of  the  application  of  the  waters  thereof  to 
beneficial  uses.  [As  to  the  duties  of  persons  boring  or  own- 
ing artesian  wells,  see  sections  3548-3552,  3608  3609.] 

[Right  Dependent  upon  TTser.] 

§  3526.  Any  prior  right  of  appropriation  shall  exist  and 
continue  only  by  the  exercise  thereof  in  a  lawful  manner, 
and  any  failure  of  such  appropriator  continuously  to  apply 
such  water  to  lawful  and  beneficial  uses,  without  due  and 


380  LAW  OF  IRRIGATION. 

sufficient  cause  shown  for  such  failure,  shall  be  deemed  an 
abandonment  and  surrender  of  such  right. 

CONDEMNATION  OF  WATER  RIGHTS. 
[Water  Rights  Subject  to  Right  of  Eminent  Domain.] 

§§  3527,  3533.  Water  rights  are  declared  to  be  subject 
to  the  right  of  eminent  domain,  and  may  be  condemned  and 
compensated  for,  for  public  uses. 

[Condemnation  of  Water  Rights  by  Irrigation  Companies.] 

§  3509.  Any  and  all  irrigating  ditch  and  canal  compa- 
nies which  have  been  heretofore  organized  or  incorporated, 
or  which  may  hereafter  become  organized  and  incorporated, 
for  the  purpose  of  procuring  or  furnishing  water  for  the 
purposes  of  irrigation,  which  shall  desire  to  condemn  the  right 
to  take  such  water  from  any  stream  in  the  state  of  Kan- 
sas, shall  have  the  right  to  procure  such  condemnation  in  the 
following  manner.  [Sections  3510-3518  relate  to  the  con- 
demnation proceedings.] 

RIGHT  OF  WAY  FOR  DITCHES,  ETC. 

[Condemnation  of  Right  of  Way.] 

§§  3534-3537,  3572.  Provision  is  made  for  the  con- 
demnation of  rights  of  way  and  sites  for  irrigating  ditches, 
reservoirs,  etc.,  the  shortest  practicable  route  for  a  ditch  to 
be  taken,  and  no  land  to  be  burdened  by  more  ditches  than 
necessary. 

[Condemnation  of  Reservoir  Site.] 

§  3642.  Any  irrigation,  canal  or  reservoir  company,  for 
the  purpose  of  establishing  any  reservoir,  lake  or  pond  for 


APPENDIX.  381 

the  storage  of  water,  shall  have  the  right  to  condemn  lands 
in  the  same  manner  as  is  provided  for  the  condemnation  of 
lands  for  railroads  and  other  purposes.  [See,  also,  section 
1325.] 

[Abandonment  of  Right  of  Way.] 

§  3538.  This  section  provides  that  a  failure  to  use  a 
right  of  way  for  two  years  shall  constitute  an  abandonment 
thereof,  and  the  title  thereto  shall  revert  to  the  original 
owner. 

[Use  of  Works  of  Another.] 

§  3544.  The  proprietors  of  any  ditch,  conduit,  reservoir 
or  other  works  for  the  diversion,  carriage,  retention  or  stor- 
age of  waters  may  procure  the  waters  to  which  they  are  en- 
titled, to  be  carried,  stored  and  distributed  from  and  through 
like  works  of  any  other  proprietor,  upon  such  terms  as  may 
be  agreed  upon  between  them,  without  in  any  manner  impair- 
ing or  affecting  their  right  of  priority  in  respect  of  such  wa- 
ters :  provided,  however,  that  thereby  the  waters  supplied  to 
any  consumer  be  not  diminished. 

[Protection  to   Ditches  Constructed  with   Consent  of  Owner   of 
Land.] 

§  3506.  Where  any  canal,  ditch,  flume  or  aqueduct 
which  is  the  property  of  any  individual,  company  or  corpora- 
tion, and  is  used  for  the  purpose  of  irrigating  land,  has  been 
located  or  constructed  on  or  over  any  tract  of  land  with  the 
knowledge  or  consent  of  the  owner  of  such  lands,  or 
upon  or  over  any  tract  of  land. owned  by  the  United  States, 
and  prior  to  the  occupation  of  the  same  by  any  settler  for 
the  purpose  of  entry  under  any  act  of  congress,  such  loca- 
tion and  construction  shall  be  prima  facie  evidence  that  the 


382  LAW  OF  IRRIGATION. 

same  was  rightful ;  and  such  canal,  ditch,  flume  or  aqueduct 
shall  be  deemed  and  held  to  come  within  the  provisions  and 
protection  of  section  1  of  chapter  134  of  the  Session  Laws 
of  1885  [providing  a  penalty  for  injuring  canals  (Gen.  St. 
§  3500)]:  provided,  however,  that  such  canal,  ditch,  flume 
or  aqueduct  shall  have  been  constructed  for  a  period  of  at 
least  two  years  prior  to  the  first  day  of  January,  A.  D. 
eighteen  hundred  and  eighty-six. 

[Ditch  Constructed  on  Unoccupied  Land.] 

§  3507.  Any  individual,  company  or  corporation  who 
has  heretofore  constructed  any  canal,  ditch,  flume  or  aque- 
duct for  the  purposes  of  irrigation  upon  or  over  lands  unoc- 
cupied at  the  time  of  such  construction,  who  shall  maintain 
the  same  for  a  period  of  five  years  succeeding  such  construc- 
tion, without  objection  in  writing  from  the  owner  of  such 
land,  or  subsequent  claimant  under  the  laws  of  the  United 
States  or  of  the  state  of  Kansas,  shall,  after  the  expiration 
of  said  period  of  five  years,  be  deemed  and  held  to  have  ac- 
quired a  permanent  right  of  way  for  such  canal,  ditch, 
flume  or  aqueduct,  not  exceeding,  however,  the  total  width 
of  three  times  the  width  of  such  ditch,  canal,  flume  or  aque- 
duct. [As  to  the  damages  to  be  awarded,  see  section  3508.] 

-  DUTIES  OF  DITCH   OWNERS. 
[As  to  Construction  and  Maintenance  of  Ditches,  etc.] 

The  statutes  contain  detailed  provisions  as  to  the  duties 
of  ditch  owners  as  to  the  construction  and  maintenance  of 
their  ditches,  dams,  etc.,  and  the  construction  of  headgates, 
measuring  devices,  waste  gates,  tail  races,  outlets,  fences, 
bridges,  etc.  Sections  3539-3543,  3545,  3553-3559,  3568- 
3570,  3610-3618. 


APPENDIX.  ,        383 

[Appointment  of  Superintendents.] 

Provision  is  made  for  the  appointment  by  ditch  owners  of 
superintendents,  who  are  required  to  distribute  the  water  to 
those  entitled  thereto.  Sections  3546,  3547,  3602,  3603. 

SALE  OF  WATER. 
[Board  of  Railroad  Commissioners  to  Fix  Water  Rates.] 

§  3573.  The  board  of  railroad  commissioners  are  em- 
powered, upon  the  complaint  of  purchasers  of  water  from 
an  irrigation  company,  to  fix  a  rate  of  compensation  for  the 
use  of  water,  such  rate  to  be  binding  on  the  company  for  one 
year,  and  until  the  further  order  of  the  board  therein. 

§  3574.  The  board  of  railroad  commissioners  shall  have 
the  same  powers  in  relation  to  irrigation  companies  that  they 
have  in  relation  to  railroad  companies. 

[Anti-Royalty  Act.J 

The  statutes  contain  provisions  substantially  the  same  as 
the  Colorado  "Anti-Koyalty  Act."  Sections  3599-3601. 

[Right  of  Consumer  to  Continue  to  Receive  Water.] 

§  3528.  This  section  provides  that  consumers  from  the 
ditch  of  a  carrier  shall  have  the  right  to  continue  to  receive 
water  on  payment  of  the  price. 

[Lien  on  Crop  of  Water  Furnished.] 

§  3499.  Any  person,  association  or  corporation  which 
shall,  under  contract  with  the  owner  of  a  tract  or  piece  of 
land,  his  agent  or  trustee,  or  under  contract  with  the  hus- 
band or  wife  of  such  owner,  furnish  water  for  irrigating  any 
portion  of  said  tract  of  land,  shall  have  a  lien  upon  the 


384  LAW  OF  IRRIGATION. 

whole  crop  grown  upon  said  tract  or  parcel  of  land  during  the 
year  the  water  is  so  furnished,  for  the  full  amount  of  the  con- 
tract price. 

STORAGE  OF  WATER. 

§  3531.  Any  person  entitled  to  the  use  of  water  for  the 
irrigation  of  lands  or  other  purposes  whatsoever  may,  at  any 
time  while  so  entitled  to  the  use  thereof,  collect  and  store  the 
same  up  for  use  presently  thereafter ;  and  the  failure  to  apply 
or  use  such  waters  during  the  period  of  such  collection  and 
storage  shall  not  be  deemed  or  taken  to  impair  his  right  in 
that  behalf. 

IRRIGATION  DISTRICTS. 

Provision  is  made  for  the  organization  of  irrigation  dis- 
tricts, the  statute  being  somewhat  similar  to  that  of  Cali- 
fornia. Sections  3575-3598. 

IRRIGATION  BOARD. 

§§  3624-3641.  By  an  act  approved  March  5,  1895,  a 
board  of  irrigation  survey  and  experiment  is  created,  and  its 
duties  as  to  conducting  experiments  in  irrigation  in  the  state 
are  defined,  and  an  appropriation  made  therefor. 

MISCELLANEOUS  PROVISIONS. 

[Adjudication  of  Priorities— Water  Bailiff.] 

§  3619.  Exclusive  jurisdiction  for  the  ascertainment  and 
settlement  of  the  several  rights  and  priorities  of  right  of  per- 
sons interested,  either  as  carrier  or  consumer,  in  water  at 
any  time  appropriated,  is  hereby  conferred  upon  the  sev- 
eral district  courts  having  jurisdiction,  within  the  limits  pre- 


APPENDIX.  385 

scribed  by  this  act ;  and  the  judge  of  any  such  district  court 
may,  whenever  necessity  therefor  shall  arise,  appoint  a  water 
bailiff,  commissioning  him  under  the  seal  of  the  court  of  the 
county  wherein  said  judge  shall  at  the  time  be,  ordering  and 
empowering  such  water  bailiff  to  prevent  the  waste  of  water 
from  any  artesian  well,  or  the  unlawful  use  thereof,  or  from 
the  artesian  wells  of  any  district,  by  any  person  or  persons, 
and  to  enforce  priority  of  right  of  appropriation  of  such  wa- 
ters, or  to  demand  and  receive  any  key  or  keys  to  any  head- 
gate  or  headgates,  waste  gate  or  waste  gates,  or  any  other 
works  in  this  act  specified,  and  to  safely  keep  the  same  so 
long  as  shall  be  necessary  to  carry  out  the  orders  of  said 
court  (returning  the  same  thereafter  to  the  owner  or  owners 
thereof,  or  disposing  [of]  the  same  according  to  the  order 
of  the  court),  and  to  divide  the  waters  of  any  source  of  sup- 
ply according  to  the  rights  and  priorities  of  the  parties  en- 
titled to  receive  the  same,  and  conformably  to  the  order  of 
said  court,  and  to  open  and  close  any  such  headgate  or  waste 
C'ate,  or  fill  any  such  canal  or  ditch,  as  may  be  required  to 
enforce  the  orders  of  such  court,  under  the  provisions  of  this 
act  respecting  the  distribution  of  water  to  the  parties  lawfully 
entitled  to  receive  the  same.  [The  remainder  of  this  section 
authorizes  the  employment  of  necessary  assistance  by  the 
water  bailiff,  and  provides  for  a  compensation  of  $2  per  day 
and  expenses,  to  be  paid  by  the  county  commissioners  on  the 
certificate  of  the  district  judge.] 

(.Rotation  of  Water.  1 

§§  3560-3567.  These  sections  provide  for  agreements 
between  the  owners  of  water  rights  for  the  rotation  of  water, 
by  distributing  it  for  particular  days  to  particular  consum- 
ers. 


386  LAW  OF  IRRIGATION. 

[Abandonment  of  Water  Right.] 

§  3532.  Any  person  transferring,  selling,  leasing,  as- 
signing or  bargaining  with  reference  to  the  transfer,  sale, 
lease  or  assignment  of  any  water,  or  any  right  he  may  have 
acquired  to  the  use  thereof,  and  any  person  receiving  any 
money  or  other  valuable  thing  whatsoever  in  consideration 
of  the  prorating  or  rotating  of  water,  or  in  consideration  of 
his  agreement  to  prorate  or  rotate  water,  shall  be  deemed  and 
taken  to  have  abandoned  all  right  to  the  use  or  enjoyment 
of  such  water:  provided,  however,  such  abandonment  shall 
.  not  operate  to  the  prejudice  of  the  rights  of  any  incumbrancer 
or  equitable  owner  of  the  lands,  mill,  manufactory  or  other 
works  to  which  such  water  is  appurtenant. 

[Offenses.] 

Penalties  are  prescribed  for  injuring  ditches,  etc.  [section 
3500],  and  for  other  unlawful  acts  in  relation  to  ditches, 
headgates,  etc.  [sections  3605,  3606],  and  for  the  excessive 
use  or  waste  of  water  [section  3604]. 


MONTANA. 

CONSTITUTIONAL   PROVISIONS. 

[TJse  of  Water  a  Public  Use.] 

Art.  3,  §  15.  The  use  of  all  water  now  appropriated,  or 
that  may  hereafter  be  appropriated,  for  sale,  rental,  distribu- 
tion or  other  beneficial  use,  and  the  right  of  way  over  the 
lands  of  others  for  all  ditches,  drains,  flumes,  canals  and 
aqueducts  necessarily  used  in  connection  therewith,  as  well 
as  the  sites  for  reservoirs  necessary  for  collecting  and  stor- 
ing the  same,  shall  be  held  to  be  a  public  use. 

[Eminent  Domain.] 

Art.  3,  §  14.  Private  property  shall  not  be  taken  or  dam- 
aged for  public  use  without  just  compensation  having  been 
first  made  to  or  paid  into  court  for  the  owner. 

STATUTORY  PROVISIONS. 

[Reference  to  Civil  Code  1895.] 
THE  RIGHT  OF  APPROPRIATION. 
[Water  may  be  Appropriated.] 

§  1880.  The  right  to  the  use  of  running  water  flowing 
in  the  rivers,  streams,  canyons  and  ravines  of  this  state  may 
be  acquired  by  appropriation. 


388  LAW  OF  IRRIGATION. 

[Appropriation  must  be  for  Useful  Purpose.] 

§  1881.  The  appropriation  must  be  for  some  useful  or 
beneficial  purpose,  and  when  the  appropriator  or  his  succes- 
sor in  interest  abandons  and  ceases  to  use  the  water  for  such 
purpose,  the  right  ceases;  but  questions  of  abandonment 
shall  be  questions  of  fact,  and  shall  be  determined  as  other 
questions  of  fact. 

[Place  of  Diversion  and  Use  of  Water  may  be  Changed.] 

§  1882.  The  person  entitled  to  the  use  of  water  may 
change  the  place  of  diversion,  if  others  are  not  thereby  in- 
jured, and  may  extend  the  ditch,  flume,  pipe  or  aqueduct,  by 
which  the  diversion  is  made,  to  any  place  other  than  where 
the  first  use  was  made,  and  may  use  the  water  for  other 
purposes  than  that  for  which  it  was  originally  appropriated. 

[Use  of  Natural  Stream  as  Conduit.  I 

§  1883.  The  water  appropriated  may  be  turned  into 
the  channel  of  another  stream,  and  mingled  with  its  waters, 
and  then  be  reclaimed;  but,  in  reclaiming  it,  water  already 
appropriated  by  another  must  not  be  diminished  in  quantity, 
or  deteriorated  in  quality. 

[Surplus  Water  to  be  Returned  to  Stream.] 

§  1884.  In  all  cases  where,  by  virtue  of  prior  appropria- 
tion, any  person  may  have  diverted  all  the  water  of  any 
stream,  or  to  such  an  extent  that  there  shall  not  be  an  amount 
sufficient  left  therein  for  those  having  a  subsequent  right  to 
the  waters  of  such  stream,  and  there  shall  at  any  time  be  a 
surplus  of  water  so  diverted,  over  and  above  what  is  actually 


APPENDIX.  389 

used  by  the  appropriate-!*,  such  person  shall  be  required  to 
turn  and  to  cause  to  flow  back  into  the  stream  such  surplus 
water,  and,  upon  failure  so  to  do  within  five  days  after  de- 
mand being  made  upon  him  in  writing  by  any  person  having 
a  right  to  the  use  of  such  surplus  water,  the  person  so  di- 
verting rhe  same  shall  be  liable  to  the  person  aggrieved 
thereby  in  the  sum  of  twenty-five  dollars  for  each  and  every 
day  such  water  shall  be  withheld  after  such  notice,  to  be  re- 
covered by  civil  action  by  any  person  having  a  right  to  the 
use  of  such  surplus  water. 

[Priority  of  Appropriation.] 

§  1885.  As  between  appropriators,  the  one  first  in  time 
is  first  in  right. 

PROCEDURE  OF  APPROPRIATION. 
[Notice  of  Appropriation  to  be  Posted.] 

§  1886.  Any  person  •  hereafter  desiring  to  appropriate 
water  must  post  a  notice  in  writing  in  a  conspicuous  place 
at  the  point  of  intended  diversion,  stating  therein  (1)  the 
number  of  inches  claimed,  measured  as  hereinafter  provided ; 
(2)  the  purpose  for  which  it  is  claimed,  and  place  of  intend- 
ed use;  (3)  the  means  of  diversion,  with  size  of  flume,  ditch, 
pipe  or  aqueduct  by  which  he  intends  to  divert  it;  (4)  the 
date  of  appropriation;  (5)  the  name  of  the  appropriates 

Within  twenty  days  after  the  date  of  appropriation,  the 
uppropriator  shall  file  with  the  county  clerk  of  the  county 
in  which  such  appropriation  is  made  a  notice  of  appropria- 
tion, which,  in  addition  to  the  facts  required  to  be  stated  in 
the  posted  notice,  as  hereinbefore  prescribed,  shall  contain 
the  name  of  the  stream  from  which  the  diversion  is  made,  if 
such  stream  have  a  name,  and,  if  it  have  not,  such  a  descrip- 


390  LAW  OF  IRRIGATION. 

tion  of  the  stream  as  will  identify  it,  and  an  accurate  descrip- 
tion of  the  point  of  diversion  on  such  stream,  with  reference 
to  some  natural  object  or  permanent  monument.  The  no- 
tice shall  be  verified  by  the  affidavit  of  the  appropriator,  or 
some  one  in  his  behalf,  which  affidavit  must  state  that  the 
matters  and  facts  contained  in  the  notice  are  true. 

[Construction  of  Works— Eight  Limited  by  Capacity  of  Ditch.] 

§  1887.  Within  forty  days  after  posting  such  notice, 
the  appropriator  must  proceed  to  prosecute  the  excavation 
or  construction  of  the  work  by  which  the  water  appropriated 
is  to  be  diverted,  and  must  prosecute  the  same  with  reasonable 
diligence  to  completion.  If  the  ditch  or  flume,  when  con- 
structed, is  inadequate  to  convey  the  amount  of  water  claim- 
ed in  the  notice  aforesaid,  the  excess  claimed  above  the  ca- 
pacity of  the  ditch  or  flume  shall  be  subject  to  appropriation 
by  any  other  person,  in  accordance  with  the  provisions  of  this 
title. 

[Forfeiture  of  Right— Relation  Back.] 

§-  1888.  A  failure  to  comply  with  the  provisions  of  this 
title  deprives  the  appropriator  of  the  right  to  the  use  of 
water  as  against  a  subsequent  claimant  who  complies  there- 
with, but,  by  complying  with  the  provisions  of  this  title,  the 
right  to  the  use  of  the  water  shall  relate  back  to  the  date  of 
posting  the  notice. 

[Declaration  of  Appropriation  to  be  Filed.] 

§  1889.  Persons  who  have  heretofore  acquired  rights  to 
the  use  of  water  shall,  within  six  months  after  the  publica- 
tion of  this  title,  file  in  the  office  of  the  county  clerk  of  the 
county  in  which  the  water  right  is  situated,  a  declaration  in 


APPENDIX.  391 

writing,  except  notice  be  already  given  of  record,  as  required 
by  this  title,  or  a  declaration  in  writing  be  already  filed,  as 
required  by  this  section,  containing  the  same  facts  as  re- 
quired in  the  notice  provided  for  record  in  section  1886  of 
this  title,  and  verified  as  required  in  said  last-mentioned  sec- 
tion, in  cases  of  notice  of  appropriation  of  water:  provided, 
that  a  failure  to  comply  with  the  requirements  of  this  section 
shall  in  no  wise  work  a  forfeiture  of  such  heretofore  acquir- 
ed rights,  or  prevent  anv  such  claimant  from  establishing 
such  rights  in  the  courts. 

[Record  as  Evidence.] 

§  1890.  The  record  provided  for  in  sections  1886  and 
1889  of  this  title,  when  duly  made,  shall  be  taken  and  re- 
ceived in  all  courts  of  this  state  as  prima  facie  evidence  of 
the  statements  therein  contained. 

[County  Clerk  Must  Keep  Record  Book.] 

§  1892.  The  county  clerk  must  keep  a  well-bound  book, 
in  which  he  must  record  the  notices  and  declarations  provid- 
ed for  in  this  title,  and  he  shall  be  entitled  to  have  and  re- 
ceive the  same  fees  as. are  now  or  hereafter  may  be  allowed 
by  law  for  recording  instruments  entitled  to  be  recorded. 

RIGHT  OF  WAY,  ETC. 

§  1894.  The  right  to  conduct  water  from  or  over  the 
land  of  another  for  any  beneficial  use  includes  the  right  to 
raise  any  water  by  means  of  dams,  reservoirs  or  embank- 
ments to  a  sufficient  height  to  make  the  same  available  for 
the  use  intended,  and  the  right  to  any  and  all  land  necessary 
therefor  may  be  acquired  upon  payment  of  just  compensa- 
tion in  the  manner  provided  by  law  for  the  taking  of  private 

(391) 


392  LAW  OF  IRRIGATION. 

property  for  public  use:  provided,  further  [the  proviso  re- 
lates to  the  right  to  construct  ditches,  etc.,  across  the  right 
of  way  of  a  railroad]. 

SALE  OF  WATER. 
[Duty  to  Sell  Water.] 

§  1897.  Any  person  having  the  right  to  use,  sell  or  dis- 
pose of  water,  and  engage  in  using,  selling  or  disposing  of 
the  same,  who  has  a  surplus  of  water  not  used  or  sold,  or  any 
person  having  a  surplus  of  water,  and  the  right  to  sell  and 
dispose  of  the  same,  is  required,  upon  the  payment  or  tender 
to  the  person  entitled  thereto  an  amount  equal  to  the  usual 
and  'customary  rate  per  inch,  to  carry  and  deliver  to  the 
person  such  surplus  of  unsold  water,  or  so  much  thereof  for 
which  said  payment  or  tender  shall  have  been  made,  and 
shall  continue  so  to  convey  and  deliver  the  same  weekly  so 
long  as  said  surplus  of  unused  or  unsold  water  exists,  and 
said  payment  or  tender  be  made  as  aforesaid. 

[Duty  of  Consumers.] 

§  1898.  Any  person  desiring  to  avail  himself  of  the  pro- 
visions of  the  preceding  section  must,  at  his  own  cost  and 
expense,  construct  or  dig  the  necessary  flumes  or  ditches  to 
receive  and  convey  the  surplus  water  so  desired  by  him,  and 
pay  or  tender  to  the  person  having  the  right  to  the  use,  sale 
or  disposal  thereof  an  amount  equal  to  the  necessary  cost 
and  expense  of  tapping  any  gulch,  stream,  reservoir,  ditch, 
flume  or  aqueduct,  and  putting  in  gates,  gauges  or  other  prop- 
er and  necessary  appliances  usual  and  customary  in  such 
cases,  and,  until  the  same  shall  be  so  done,  the  delivery  of 
the  said  surplus  water  shall  not  be  required  as  provided  in 
the  preceding  section. 


APPENDIX.  393 

[Right  of  Consumers— Enforcement.] 

§  1899.  Any  person  constructing  the  necessary  ditches, 
aqueducts  or  flumes,  and  making  the  payments  or  tenders 
hereinbefore  provided,  is  entitled  to  the  use  of  so  much  of 
the  said  surplus  water  as  said  ditches,  flumes  or  aqueducts 
have  the  capacity  to  carry,  and  for  which  payment  or  tender 
is  made,  and  may  institute  and  maintain  any  appropriate 
action  at  law  or  in  equity  for  the  enforcement  of  such  right 
or  recovery  of  damages  arising  from  a  failure  to  deliver  or 
wrongful  diversion  of  the  same. 

[Right  Limited.! 

§  1900.  ^Nothing  in  the  three  preceding  sections  shall 
be  so  construed  as  to  give  the  person  acquiring  the  right  to 
the  use  of  water  as  therein  provided  the  right  to  sell  or  dis- 
pose of  the  same  after  being  so  used  by  him,  or  prevent  the 
original  owner  or  proprietor  from  retaking,  selling  and  dis- 
posing of  the  same  in  the  usual  and  customary  manner,  after 
it  is  so  used  as  aforesaid. 

See  generally,  as  to  irrigation  corporations,  sections  ->i>3 
(31).  40?  (6V 

DISTRIBUTION  OF  WATER  BY  COMMISSIONER. 
[Act  of  March  2,  1899.] 

§  1.  Whenever  the  water  rights  pertaining  to  any  stream 
or  water  system  within  the  state  of  Montana  have  been  deter- 
mined by  a  decree  of  a  competent  court,  it  shall  be  the  duty 
of  the  district  judge  of  the  district  within  which  such  water 
rights  are  situated,  upon  the  application  of  the  owners  of  at 
least  twenty-five  per  cent  of  the  water  rights  affected  by  such 
decree,  to  appoint  a  commissioner,  who  shall  have  the  author- 


394  LAW  OF  IRRIGATION. 

ity  to  measure  and  distribute  to  the  parties  interested  under 
such  decree  the  waters  to  which  they  are  entitled,  according 
to  their  priority  as  established  by  such  decree;  and  for  that 
purpose  such  commissioner  shall  have  authority  to  enter 
upon  any  ditch,  canal,  aqueduct  or  other  source  for  convey- 
ing the  waters  affected  by  such  decree,  and  to  visit,  inspect 
and  adjust  all  headgates  or  other  means  of  distributing  such 
waters ;  and  shall  have  the  same  power  as  a  sheriff  or  consta- 
ble to  arrest  any  and  all  persons  interfering  with  the  distri- 
bution made  by  him,  and  to  take  such  persons  so  arrested  be- 
fore the  judge  of  the  district  court  for  trial  for  contempt  of 
the  decree  of  said  court. 

§  2.  Provides  for  fees  and  compensation  of  commission- 
ers to  be  fixed  by  the  judge,  and  apportioned  among  the  users 
of  water  rights. 

§  3.  Provides  that  a  commissioner  failing  to  perform  the 
duties  imposed  upon  him  by  the  court  shall  be  deemed  guilty 
of  contempt.  [Laws  1899,  pp.  136,  137.] 

MEASUREMENT  OF  WATER. 
[Act  March  3,  1899.] 

§  1.  Hereafter  a  cubic  foot  of  water  (7.48  gallons)  per 
second  of  time  shall  be  the  legal  standard  for  the  measure- 
ment of  water  in  this  state. 

§  2.  Where  water  rights  expressed  in  miners'  inches 
have  been  granted,  one  hundred  miners'  inches  shall  be  con- 
sidered equivalent  to  a  flow  of  two  and  one-half  cubic  feet 
(18.7  gallons)  per  second;  two  hundred  miners'  inches  shall 
be  considered  equivalent  to  a  flow  of  five  cubic  feet  (37.4  gal- 
lons) per  second,  and  this  proportion  shall  be  observed  in  de- 
termining the  equivalent  flow  represented  by  any  number  of 
miners'  inches. 


APPENDIX.  395 

§  3.  Provided,  that  the  provisions  of  this  bill  shall  not 
affect  or  change  the  measurement  of  water  heretofore  decreed 
bj  a  court,  but  such  decreed  water  shall  be  measured  accord- 
ing to  the  law  in  force  at  the  time  such  decree  was  made  and 
entered.  [Laws  1899,  p.  126,  repealing  Civ.  Code,  §  1893.] 

MISCELLANEOUS  PROVISIONS. 
[References  to  Civil  Code    1895.] 

[Adjudication  of  Priorities.] 

§   1891.     See  the  text,  section  107. 

[Dams  and  Reservoirs  to  be  Securely  Constructed.] 

§  1901.  No  person  shall  hereafter  fill,  or  procure  to  be 
filled,  with  water,  any  dam  or  reservoir  which  is  not  so  thor- 
oughly and  substantially  constructed  as  that  it  will  safely  and 
securely  hold  the  water  to  be  turned  therein. 

§  1902.  No  person  shall  hereafter  construct,  or  cause  to 
be  constructed,  on  a  stream,  any  dam  or  reservoir  to  accumu- 
late the  waters  thereof,  except  in  a  thorough,  secure  and  sub- 
stantial manner. 

[Protection  of  Highways.] 

§§  1895,  1896.  These  sections  require  persons  construct- 
ing ditches,  etc.,  over  or  across  public  roads  or  highways,  to 
protect  such  roads  or  highways  from  injury  by  keeping  the 
ditches,  etc.,  in  good  repair  by  bridging  or  otherwise,  and  pre- 
scribe a  penalty  for  failure  to  do  so. 

[Taking  Water  from  or  Obstructing  Canals.] 

Pen.  Code,  §  1034.  This  section  is  substantially  the  same 
as  Pen.  Code  Cal.  §  592. 


396  LAW  OF  IRRIGATION. 

[Destroying  or  Injuring  Dams,  Canals,  etc.] 

Pen.  Code,  §  1058.  This  section  provides  a  penalty  for 
willfully  and  maliciously  injuring  or  destroying  dams,  ca- 
nals, reservoirs,  etc. 


NEBRASKA. 

The  Nebraska  constitution  contains  no  provision  on  the 
subject  of  irrigation. 

[References  to  Compiled  Statutes  1899.] 

This  compilation  contains  the  statutes  found  in  the  latest 
revision  of  the  statutes.  Several  sections  of  the  earlier  re- 
vision relating  to  appropriation  have  been  repealed,  the  ap- 
propriation act  having  been  declared  unconstitutional.  See 
text,  section  24.  Notwithstanding  this  decision,  most  of  the 
sections  relating  to  appropriation  have  been  retained. 

GENERAL  PROVISIONS  AS  TO  APPROPRIATION  OF  WATER. 

[Water  Public  Property.] 

§  54-85.  The  water  of  every  natural  stream  not  hereto- 
fore appropriated,  within  the  state  of  Nebraska,  is  hereby  de- 
clared to  be  the  property  of  the  public,  and  is  dedicated  to 
the  use  of  the  people  of  the  state,  subject  to  appropriation,  as 
hereinbefore  provided. 

[Water  for  Irrigation  a  Natural  Want.] 

£  5508.  Water  for  the  purposes  of  irrigation  in  the  state 
of  Nebraska  is  hereby  declared  to  be  a  natural  want. 

[Right  of  Appropriation— Priority.] 

§  5486.  This  section  is  a  copy  of  Const.  Colo.  art.  16, 
§  6.  See  section  5495,  infra. 


398  LAW  OF  IRRIGATION. 

[Appropriation  must  be  for  Useful  Purpose.] 

§  5461.  All  appropriations  for  [of]  water  must  be  for 
some  beneficial  or  useful  purpose,  and  w.hen  the  appropriator 
or  his  successor  in  interest  ceases  to  use  it  for  such  purpose, 
the  right  ceases. 

[Priority  of  Appropriation.] 

§  5443.  As  between  appropriators,  the  one  first  in  time 
is  first  in  right. 

[Appropriation  of  Waste  and  Seepage  Water.] 

§  5487.  This  section  is  practically  identical  with  Mills' 
Ann.  St.  Colo.  §  2269. 

[Change  of  Place  of  Diversion.] 

§  5441.  The  person,  company  or  corporation  entitled  to 
the  use  may  change  the  place  of  diversion  if  others  are  not  in- 
jured by  such  change,  and  may  extend  the  ditch,  flume  or 
aqueduct  by  which  the  diversion  is  made  to  places  beyond 
that  where  the  first  use  was  made. 

[Turning  Water  into  Natural  Stream.] 

§  5442.  The  water  appropriated  from  a  river  or  stream 
shall  not  be  turned  or  permitted  to  run  into  the  waters  or 
channel  of  any  other  river  or  stream  than  that  from  which  it 
is  taken  or  appropriated,  unless  such  stream  exceeds  in 
width  one  hundred  (100)  feet,  in  which  event  not  more  than 
seventy-five  (75)  per  cent,  of  the  regular  flow  shall  be  taken. 

[Use  of  Natural  Stream  as  Channel.] 

§  5488.  This  section  authorizes  the  use  of  natural 
streams  or  channels  as  a  conduit  for  water  appropriated, 
upon  certain  conditions. 


APPENDIX.  399 

RIGHT  OF  WAY  FOR  DITCHES,  ETC. 

[Right  of  Way  may  be  Condemned.] 

§  5482.  All  persons,  companies  or  associations  desirous 
of  constructing  a  ditch,  building  a  dam,  or  dams,  for  the  pur- 
pose of  storing  water  for  irrigation,  evaporation  and  water- 
power  purposes,  or  conveying  water  to  be  applied  to  domes- 
tic, agricultural  or  any  other  beneficial  use,  or  any  dam,  dike, 
reservoir,  waste  way,  subterranean  gallery,  filtering  wells,  or 
other  works  for  collecting,  cleansing,  filtering,  retaining  or 
storing  water  for  any  such  use,  or  to  enlarge  any  such  ditch, 
conduit  or  waterworks,  or  to  change  the  course  thereof  in  any 
place,  or  to  relocate  the  headgate,  or  to  change  the  point  at 
which  the  water  is  to  be  taken  into  such  canal  or  other  water- 
works, or  to  enlarge  any  ditch,  canal  or  other  works  thereto- 
fore constructed  by  any  other  person,  company,  corporation 
or  association,  or  to  construct  any  ditch,  or  to  lay  pipes  or 
conduits  for  conveying  or  distributing  water  so  collected  or 
stored  to  the  place  of  using  the  same,  or  to  set,  place  or  con- 
struct a  wheel,  pump,  machine  or  apparatus  for  raising  wa- 
ter out  of  any  stream,  lake,  pond  or  well,  so  that  the  same 
may  flow  or  be  conveyed  to  the  place  of  using  or  storing  the 
same,  and  who  shall  be  unable  to  agree  with  the  owner  or 
claimant  of  any  lands  necessary  to  be  taken  for  the  site  of 
any  such  works,  or  any  part  thereof,  touching  the  compensa- 
tion and  damages,  shall  be  entitled  to  condemn  the  right  of 
way  over  or  through  the  lands  of  others  for  any  and  all  such 
purposes. 

[Condemnation  Proceeding.] 

§  5484.  This  section  provides  the  mode  of  procedure  in 
condemnation  proceedings. 


400  LAW  OF  IRRIGATION. 

[Only  One  Ditch  when  Practicable.] 

§  5440.  ~No  tract  of  land  shall  be  crossed  by  more  than 
one  ditch,  canal  or  lateral  without  the  written  consent  and 
agreement  of  the  owner  thereof,  if  the  first  ditch,  canal  or 
lateral  can  be  made  to  answer  the  purpose  foi  which  the  sec- 
ond is  desired  or  intended. 

[Right  of  Way  over  Public  Lands.] 

§  5483.  All  persons,  companies,  corporations  or  associa- 
tions being  desirous  of  constructing  any  of  the  works  pro- 
vided for  in  the  preceding  sections  shall  have  the -right  to  oc- 
cupy state  lands,  and  to  obtain  right  of  way  over  and  through 
any  highway  in  any  county  in  this  state  for  such  purposes, 
without  any  compensation  therefor. 

DUTIES  OF  DITCH  OWNERS. 

[Ditch  Owner  to  Maintain  Embankments.] 

§  5502.  The  owner  or  owners  of  any  irrigation  ditch  or 
canal  shall  carefully  maintain  the  embankments  thereof  so 
as  to  prevent  waste  therefrom,  and  shall  return  the  unused 
water  from  such  ditch  or  canal  with  as  little  waste  thereof  as 
possible  to  the  stream  from  which  such  water  was  taken,  or 
to  the  Missouri  river. 

[Ditches  Crossing  Highways  to  be  Bridged.] 

§  5501.  This  section  requires  the  owners  of  ditches  or 
canals  upon  or  across  highways  to  keep  such  highways  open 
for  safe  and  convenient  travel,  and  to  construct  bridges  as 
prescribed. 

[Ditch  Owner  to  Prevent  Overflow  on  Road.] 

§   5503.     This  section   requires  ditch  owners  to  prevent 


APPENDIX.  401 

overflow  from  their  ditches  upon  any  road  or  highway,  and 
prescribes  a  penalty  for  violation  of  this  provision. 

[Duty  to  'Construct  Headgates  and  Measuring  Devices — Maps  of 
CanalsJ 

§  5480.  This  section  requires  appropriators  to  maintain 
substantial  headgates,  and,  when  required  by  the  under  sec- 
retary of  the  division,  a  flume  or  measuring  device  near  the 
head  of  the  ditch,  and  provides  for  the  construction  thereof 
by  the  county  board,  at  the  cost  of  the  ditch  owner,  upon  the 
failure  of  the  latter  to  put  in  such  headgate  or  measuring  de- 
vice when  required  to  do  so  by  the  under  secretary.  The 
section  also  requires  every  person,  corporation  or  association 
owning  or  controlling  a  canal,  within  90  days  after  notifica- 
tion from  the  state  board,  to  file  with  such  board  a  map  or 
plat  of  the  canal,  and  such  other  information  as  the  board 
may  deem  proper. 

[Requirements  as  to  Ditches  Crossing  Land  of  Another.] 

§  5494.  This  section  provides  that  any  person,  company, 
corporation  or  association  constructing  a  ditch  or  canal 
through  the  lands  of  another,  having  no  interest  in  such  ditch 
or  canal,  shall  build  the  same  in  a  substantial  manner,  so  as 
to  prevent  damage  to  such  land,  and  construct  bridges  across 
the  ditch  or  canal  when  necessary,  and  erect  and  keep  in  or- 
der suitable  gates  at  the  point  of  entrance  and  exit  of  the 
ditch  through  any  inclosed  field. 

» 

[Construction  of  Outlets — Appropriation  of  Water.] 

5495.  This  section  is  substantially  the  same  as  Mills' 
Ann.  St.  Colo.  §  2288,  but  provides  in  addition  that  "the  right 
to  the  use  of  running  water  flowing  in  any  river  or  stream,  or 


402  LAW  OF  IRRIGATION. 

down  any  canyon  or  ravine,  may  be  acquired  by  appropria- 
tion by  any  person,  company,  corporation  or  association  or- 
ganized under  the  laws  of  the  state  of  Nebraska." 

[Duty  of  Ditch  Owner  to  Appoint  Superintendent.! 

§  5496.  This  section  is  substantially  the  same  as  Mills' 
Ann.  St.  Colo.  §  2289,  but  provides  in  addition  that  the  su- 
perintendent may  cause  gates  to  be  locked,  and  may  retain  the 
keys. 

[Liability  of  Superintendent  for  Failure  to  Deliver  Water.] 

§  5500.  This  section  is  substantially  the  same  as  Mills' 
Ann.  St.  Colo.  §  2290,  omitting  that  portion  following  the 
word  "month." 

[No  Person  to  Receive  More  Water  Than  He  is  Entitled  toJ 

§   5497.     Copied  from  Mills'  Ann.  St.  Colo.  §  2395. 
[Duty  of  Person  Receiving  Excess  of  Water.] 

§  5498.  Substantially  the  same  as  Mills'  Ann.  St.  Colo. 
§  2396. 

[Change  of  Line  of  ' Canal — Water  to  be  Kept  Flowing.] 

§  5489.  That  whenever  any  ditch  or  canal  has  been  con- 
structed for  the  purpose  of  conveying  or  selling  water  for  ir- 
rigation purposes,  it  shall  be  unlawful  for  the  owner  or  own- 
ers of  said  ditch  or  canal  to  change  the  line  of  said  ditch  or 
canal  so  as  to  interfere  with  the  use  of  water  from  said  ditch 
or  canal  by  any  one  who,  prior  to  the  proposed  change,  had 
used  water  for  irrigation  purposes  from  said  ditch  or  canal; 


APPENDIX.  403 

and  it  is  hereby  made  the  duty  of  the  owner  or  owners  of  any 
such  ditch  or  canal  to  keep  the  same  in  good  repair,  and  to 
cause  the  water  to  flow  through  the  said  ditch  or  canal  to  the 
extent  of  its  capacity  during  the  period  between  April  15th 
and  November  1st  each  year,  if  the  same  be  demanded,  and 
the  supply  at  its  source  be  sufficient,  and,  for  a  failure  to  cause 
the  water  to  flow  as  aforesaid,  the  owner  or  owners  or  lessees 
of  any  such  ditch  shall  be  liable  to  any  one  for  any  damage 
resulting  from  such  a  failure,  and,  in  addition  to  such  per- 
sonal liability,  such  damage  shall  be  a  lien  upon  such  ditch 
or  canal,  which  lien  continues  in  force  until  such  damages 
are  paid,  unavoidable  accidents  excepted. 

STORAGE  OF  WATER. 
[Eight  to  Store  Water — Liability  of  Eeservoir  Owner J 

§  5499.  Any  person,  company  or  corporation  desirous  of 
constructing  and  maintaining  a  reservoir  for  the  purpose  of 
storing  water  for  irrigation  purposes  shall  have  the  right  to 
take  water  from  the  natural  streams  of  this  state  when  not 
needed  for  immediate  use  for  irrigation  or  domestic  pur- 
poses ;  to  construct  and  maintain  ditches  for  the  purpose  of 
conducting  water  to  and  from  such  reservoirs,  and  to  con- 
demn land  for  such  reservoirs  and  ditches  in  the  same  man- 
ner as  is  provided  by  law  for  the  condemnation  for  right  of 
way  for  ditches ;  and  the  owner  or  owners  of  such  reservoirs 
shall  be  liable  for  all  damages  arising  from  leakage  or  over- 
flow of  the  water  therefrom,  and  by  the  breaking  of  the  em- 
bankments of  such  reservoir. 

IDamsJ 

§  5481.  This  section  provides  that  dams  for  reservoir 
purposes  or  across  running  streams,  when  above  ten  feet  in 


404  LAW  OF  IRRIGATION. 

height,  shall  not  be  constructed  until  a  plan  of  the  same  shall 
have  been  submitted  to  and  approved  by  the  state  board  of 
irrigation. 

PUBLIC  CONTROL  OF  IRRIGATION. 

A  system  of  public  control  similar  to  that  of  Wyoming 
[see  text,  section  122]  is  provided  for.  The  state  is  divided 
into  two  water  divisions  [sections  5444-5446],  and  a  state 
board  of  irrigation,  composed  of  the  governor,  attorney  gen- 
eral and  commissioner  of  public  lands  and  buildings,  is  cre- 
ated [sections  5447-5449],  and  their  powers  and  duties  are 
prescribed.  These  are  substantially  the  same  as  those  of  the 
Wyoming  board  of  control. 

The  board  of  irrigation  shall  elect  an  under  secretary  for 
each  water  division,  who  shall  hold  office  for  two  years,  and 
must  reside  in  his  division.  He  has  the  supervision  and  con- 
trol of  the  distribution  of  water  in  his  division.  [Sections 
5424-5457.] 

Provision  is  made  for  the  establishment  of  water  districts, 
as  in  Wyoming,  and  the  appointment  of  one  "under  assist- 
ant" for  each  district,  this  officer  corresponding  to  the  water 
commissioners  of  Wyoming.  [Sections  5476-5479.] 

Persons  desiring  to  appropriate  water  are  required  to  make 
application  to  the  state  board  for  a  permit  to  do  so.  Sections 
5471-5473.  See,  also,  sections  5474,  5505. 

IRRIGATION  COMPANIES. 
[Mutual  Irrigation  Companies J 

§  5509.  Any  corporation  or  association  organized  under 
the  laws  of  this  state  for  the  purpose  of  constructing  and 
operating  canals,  reservoirs  and  other  works  for  irrigation 


APPENDIX.  405 

purposes,  and  deriving  no  revenue  from  the  operation  of 
such  canal,  reservoir  or  works,  shall  be  termed  a  "mutual  ir- 
rigation company,"  and  any  by-laws  adopted  by  such  com- 
pany prior  to  or  after  the  passage  of  this  act,  not  in  conflict 
herewith,  shall  be  deemed  lawful,  and  so  recognized  by  the 
courts  of  this  state :  provided,  such  by-laws  do  not  impair  the 
rights  of  one  shareholder  over  another. 

[Assessment  of  Shares  of  Corporations.] 

§  5510.  This  section  provides  that  corporations  or  asso- 
ciations organized  for  the  purpose  of  constructing  or  oper- 
ating canals,  etc.,  for  irrigation  purposes  may  assess  the 
shares,  stock  or  interest  of  the  stockholders  for  running  ex- 
penses. 

[Water  Companies  may  Borrow  Money.] 

§  5490.  This  section  authorizes  companies  operating 
canals,  etc.,  to  borrow  money,  and  to  mortgage  their  prop- 
erty, issue  bonds,  etc. 

MISCELLANEOUS    PROVISIONS. 
[What  are  Irrigation  'Canals. ] 

§  5439c.  Any  canal  constructed  for  the  purpose  of  de- 
veloping water  power,  or  any  other  useful  purpose,  and  for 
which  water  can  be  taken  for  irrigation,  is  hereby  declared  to 
be  an  irrigation  canal,  and  all  laws  relating  to  irrigation  ca- 
nals shall  be  deemed  applicable  thereto. 

[Canals,  etc.,  Internal  Improvements.] 

§  5491.  Canals  and  other  works  constructed  for  irriga- 
tion or  water  power  purposes  or  both  are  hereby  declared  to 
be  works  of  internal  improvement,  and  all  laws  applicable  to 


406  LAW  OF  IRRIGATION. 

works  of  internal  improvement  are  hereby  declared  to  be  ap- 
plicable to  such  canal  and  irrigation  works. 

[Canals,  etc.,  Exempt  from  Taxation.l 

§  5504.  All  ditches,  canals,  laterals  or  other  works  used 
for  irrigation  purposes  shall  be  exempt  from  all  taxation, 
whether  state,  county  or  municipal. 

[Wasting  Mutual  Artesian  Water J 

§§  5443a-5343c.  These  sections  prohibit  the  waste  of 
water  from  artesian  wells,  and  provide  a  penalty  for  viola- 
tion of  this  prohibition. 

[Measurement  of  Water  J 

§  5475.  A  cubic  foot  of  water  per  second  of  time  shall 
be  the  legal  standard  of  the  measurement  of  water  in  this 
state,  both  for  the  purpose  of  determining  the  flow  of  water 
in  the  natural  streams,  and  for  the  purpose  of  distributing 
therefrom:  provided,  however,  that  water  heretofore  sold  by 
the  miners'  inch  shall  continue  to  be  delivered  in  that  way. 
[The  section  further  prescribes  the  mode  of  measuring  water 
so  sold,  the  requirements  being  substantially  the  same  as 
Mills'  Ann.  St.  Colo.  §  4643.] 

[Interfering  With  or  Injuring  Ditches,  etc.] 

§  5493.  This  section  provides  a  penalty  for  unlawfully 
interfering  with  dams,  headgates,  etc.,  or  injuring  ditches, 
etc.,  or  stealing  water  therefrom. 

[Deeds  and  Contracts  for  Water  Rights.] 

§  5506.  Whenever  any  person,  persons  or  corporation 
owning  any  irrigation  ditch  or  canal  shall  convey  by  deed  or 


APPENDIX.  407 

contract  the  right  to  use  the  water  from  such  ditch  or  canal 
for  any  tract  of  land  for  irrigation  purposes,  such  deed  or 
contract  shall  be  recorded  in  the  county  where  such  land  is 
situated,  in  the  same  manner  and  under  the  same  conditions 
as  deeds  for  real  estate  are  recorded;  and  such  deed  or  con- 
tract, from  the  date  of  recording  thereof,  shall  be  binding 
upon  the  grantor  of  such  deed  or  contract,  his,  their  or  its 
successors  or  assigns,  and  all  persons,  companies  or  corpora- 
tions claiming  any  interest  in  such  ditch  or  canal,  and  no 
foreclosure  or  other  proceedings  to  collect  money  from  or 
subject  the  sale  of  the  property  of  the  owners  of  such  ditch 
or  canal  shall  in  any  manner  impair  the  right  of  such 
grantee,  his  heirs,  administrators  or  assigns,  to  the  use  of  the 
water  from  such  ditch  or  canal,  in  the  quantity  and  manner 
provided  in  such  deed  or  contract. 


NEVADA. 

[References  to  Compiled  Laws  1900.] 

Nevada  has  no  constitutional  provisions  relating  to  irri- 
gation. There  have  been  several  statutes  on  the  subject, 
notably  the  act  of  1891,  providing  for  the  organization  of  ir- 
rigation districts  [sections  374-423],  and  the  general  statute 
of  1899.  The  provisions  of  the  latter  as  to  public  control  of 
irrigation  have  been  referred  to  in  the  text  [section  123]. 
The  other  provisions  of  this  act  and  the  other  statutes  are 
here  given. 

GENERAL    PROVISIONS. 

[Water  Property  of  State J 

§  354.  All  'natural  watercourses  and  natural  lakes,  and 
the  waters  thereof,  which  are  not  held  in  private  ownership, 
belong  to  the  state,  and  are  subject  to  regulation  and  control 
by  the  state. 

[Eight  to  Water  Usufructuary  Only.] 

§  356.  There  is  no  absolute  property  in  the  waters  of  a 
natural  watercourse  or  natural  lake.  ~No  right  can  be  ac- 
quired to  such  waters  except  as  usufructuary  right, — the 
right  to  use  it,  or  to  dispose  of  its  use,  for  a  beneficial  pur- 
pose. When  the  necessity  for  the  use  of  the  water  does  not 
exist,  the  right  to  divert  it  ceases,  and  no  person  shall  be  per- 
mitted to  divert  or  use  the  waters  of  a  natural  watercourse  or 


APPENDIX.  409 

lake  except  at  such  times  as  the  water  is  required  for  a  bene- 
ficial purpose. 

[Water  must   be   Economically  Used — Return   of   Surplus  to 
Channel.! 

§  357.  ISFo  person  shall  be  permitted  to  divert  or  use  any 
more  of  the  waters  of  a  natural  watercourse  or  natural  lake 
than  sufficient,  when  properly  and  economically  used,  to  an- 
swer the  purpose  for  which  the  diversion  is  made;  nor  shall 
any  person  be  permitted  to  waste  any  such  water,  and  all 
surplus  water  remaining  after  use,  unavoidable  wastage  ex- 
cepted,  shall  be  returned  to  the  channel  by  the  persons  divert- 
ing the  same,  without  unreasonable  delay  or  detention. 

['Change  of  Place  of  Diversion.] 

§  358.  Any  person  who  has  acquired  the  right  to  use  the 
water  for  a  beneficial  purpose  may  change  the  place  of  diver- 
sion and  manner  of  use,  provided  such  change  does  not  sub- 
stantially injure  the  rights  of  others. 

[Priority  Acquired  Only  in  the  Manner  Provided  by  Statute.] 

§  359.  The  prior  right  to  the  use  of  the  unappropriated 
waters  of  the  natural  watercourses  and  natural  lakes,  as  de- 
fined in  this  act,  may  be  acquired  in  the  manner  provided  in 
this  act,  and  not  otherwise. 

[Use  of  Natural  Stream  for  Conducting  Water.] 

§  424.  Any  water  stored  for  irrigation  or  other  benefi- 
cial purposes  may  be  turned  into  the  channel  of  any  natural 
stream  or  watercourse,  and  mingled  with  its  waters,  and  then 
be  reclaimed,  but,  in  reclaiming  it,  water  already  appropria- 
ted by  others  shall  not  be  diminished  in  quantity. 


410  LAW  OP  IRRIGATION. 

[Exisiting  Eights  Protected.! 

§  355.  All  existing  rights  to  the  use  of  water,  whether 
acquired  by  appropriation  or  otherwise,  shall  be  respected 
and  preserved,  and  nothing  in  this  act  [of  1899]  shall  be 
construed  as  enlarging,  abridging  or  restricting  such  rights. 

CONSTRUCTION  OF  DITCHES,  ETC. 
[Certificate  to  be  Filed.  ] 

§  425.  By  the  act  of  1866  it  was  provided  that  any  per- 
son desiring  to  construct  and  maintain  a  ditch  or  flume 
should  make,  sign  and  acknowledge  a  certificate  specifying 
the  name  of  the  ditch  or  flume,  and  the  names  of  the  places 
constituting  its  termini;  such  certificate  and  a  plat  of  the 
proposed  ditch  or  flume  to  be  recorded.  The  work  of  con- 
structing such  ditch  or  flume  shall  be  commenced  within 
thirty  days  of  the  time  of  making  such  certificate,  and  shall 
be  continued  with  all  reasonable  dispatch  until  completed. 

[Right  of  Way  of  Ditches,  etc.l 

§  426.  By  this  act  it  was  provided  that  persons  desiring 
to  construct  a  ditch  or  flume  should  have  the  right  to  enter 
upon  private  lands  for  the  purpose  of  examination  and  sur- 
vey, and  might  appropriate  so  much  of  such  land  as  might 
be  necessary  for  a  right  of  way,  upon  the  payment  of  compen- 
sation, to  be  determined  by  appraisers.  See,  also,  section  428. 

§  429.  By  the  act  of  1887,  a  similar  right  was  granted 
for  the  construction  of  waste  ditches  to  carry  off  surplus  wai- 
ter. 

[Ditch  Owner  Entitled  to  Undisturbed  Eight  of  Flowing  Water 
Through  Ditch.  1 

§  427.  Persons  constructing  or  maintaining  a  ditch  or 
flume  are  further  granted  the  undisturbed  right  and  privi- 


APPENDIX.  411 

lege  of  flowing  water  through  the  same,  and  to  use  the  same 
along  the  line  of  such  ditch  or  flume. 

MISCELLANEOUS    PROVISIONS. 

[Unlawful  Diversion  and  Waste  of  Water .1 

§§  430,  431.  These  sections  define  and  provide  a  pen- 
alty for  the  unlawful  use  and  waste  of  water  during  the  irri- 
gating season. 

^Obstruction  or  Pollution  of  Water.] 

§§  432-434.  By  these  sections  it  is  made  a  misdemeanor 
for  the  owners  of  sawmills,  slaughter  houses,  breweries  or 
tanneries  to  obstruct  or  pollute  the  flow  of  water  of  streams, 
and  a  right  of  action  given  to  landowners  injured  by  a  viola- 
tion of  the  act.  See,  also,  sections  4835,  4836,  4979-4981. 

[Unit  of  Measure.! 

§  360.  In  all  measurements  of  water  in  this  state,  a  cu- 
bic foot  of  water  per  second  of  time  shall  be  the  standard  of 
measurement. 


NEW  MEXICO. 

The  laws  of  New  Mexico  on  the  subject  of  water  rights 
consist  of  the  general  title  "Acequias,"  comprising  sections  1 
to  63  of  the  Compiled  Laws  of  1897,  and  the  provisions  re- 
lating to  irrigation  corporations,  comprising  sections  467  to 
494.  The  law  of  acequias,  so  far  as  irrigation  is  concerned, 
is  very  similar  to  that  of  Arizona,  and  it  is  therefore  deemed 
sufficient  to  present  here  merely  a.  brief  abstract. 

GENERAL  PROVISIONS. 

All  the  inhabitants  of  the  territory  have  the  right  to  con- 
struct acequias  and  take  water  for  the  same  from  wherever 
they  can,  compensation  being  made  for  land  taken  for  such 
purpose,  the  amount  of  such  compensation  to  be  determined 
in  a  manner  prescribed.  Sections  23-29.  No  compensa- 
tion shall  be  allowed  in  the  case  of  a  ditch  constructed  by  a 
community  of  people  owning  all  the  land  upon  which  the 
ditch  is  constructed.  Section  4.  The  course  of  established 
ditches  shall  not  be  disturbed.  Section  5.  All  acequias  are 
the  property  of  the  persons  constructing  them,  and  others 
may  not  use  water  therefrom  except  by  permission  and  upon 
payment  of  a  proportionate  share  of  the  cost  of  construction. 
Section  21.  The  impediment  of  irrigation,  as  by  the  con- 
struction of  mills,  etc.,  is  prohibited,  as  irrigation  is  pre- 
ferred to  all  other  uses  of  water.  Section  1.  Interference 
with  acequias,  or  the  unauthorized  use  of  water  therefrom,  is 
a  misdemeanor.  Sections  13,  36.  Provision  is  made  for 


APPENDIX.  413 

the  protection  of  land  or  other  property  by  water  from 
ditches,  etc.  Sections  18, 19,  3 7,  38.  Provision  is  made  for 
the  organization  of  irrigation  companies,  and  their  powers 
and  duties  are  denned.  Sections  467-494.  Every  person,  as- 
sociation or  corporation  constructing  or  enlarging  any  ditch, 
canal  or  feeder  for  any  reservoir,  and  taking  water  from  any 
natural  stream,  is  required,  within  90  days  after  the  com- 
mencement of  such  work,  to  file  and  cause  to  be  recorded  in 
the  office  of  the  probate  clerk  of  the  proper  county  a  sworn 
statement  in  writing,  showing  certain  prescribed  particulars 
as  to  such  work,  and  no  priority  of  right  shall  attach  to  any 
such  construction,  change  or  enlargement  until  such  record  is 
made.  Section  493. 

PUBLIC  DITCHES    OR  ACEQUIAS. 

All  rivers  and  streams  of  water  in  the  territory  formerly 
known  as  public  ditches  or  acequias  are  established  and  de- 
clared to  be  public  ditches  or  acequias.  Section  6.  Com- 
munity ditches  are  ditches  not'  private  and  not  incorporated, 
and  are  held  and  owned  by  two  or  more  persons  as  cotenauts. 
Section  14.  All  community  ditches  or  acequias  are  to  be 
considered  as  corporations,  or  bodies  corporate,  with  power 
to  sue  or  be  sued  as  such.  Section  8.  The  officers  of  such 
community  ditches  or  acequias  are  three  commissioners  and 
one  mayordomo,  or  superintendent,  each  of  whom  must  be 
interested  in  the  ditch  or  water  therein ;  the  mode  of  election 
of  such  officers  being  prescribed.  Sections  9,  10.  Persons 
interested  in  public  ditches  or  acequias  are  required  to  labor 
thereon,  the  regulation  of  such  labor  being  minutely  pre- 
scribed. Sections  11,  12,  32-35,  39-45.  Pueblo  Indians 
are  required  to  work  on  acequias.  Section  1876.  Public 


414  LAW  OF  IRRIGATION. 

and  community  ditches  crossing  highways  are  required  to  be 
bridged.  Sections  15,  46-48.  Mayordomos  are  liable  to 
fine  for  misconduct  or  neglect  of  duty.  Sections  30,  49. 


NORTH  DAKOTA. 

CONSTITUTIONAL  PROVISIONS. 

[Streams  Property  of  State J 

§  210.  All  flowing  streams  and  natural  watercourses 
shall  forever  remain  the  property  of  the  state  for  mining,  ir- 
rigating and  agricultural  purposes. 

STATUTORY  PROVISIONS. 

Earlier  legislation  having  been  repealed,  the  statutes 
now  in  force  in  this  state  consist  of  several  sections  in  the  Re- 
vised Codes  of  1899,  and  an  act  passed  by  the  legislature  of 
1899. 

GENERAL  PROVISIONS. 

[Act  1899;  Laws  1899,  p.  246.] 

[Right  to  Use  of  Water  Granted.] 

§  1.  Any  person  or  persons,  corporation  or  company, 
who  may  have  or  hold  a  title  or  possessory  right  or  title  of 
any  mineral  or  agricultural  lands  within  the  boundaries  of 
this  state,  shall  be  entitled  to  the  usual  enjoyment  of  the  wa- 
ters of  the  streams  or  creeks  in  said  state  for  mining,  mill- 
ing, agricultural  or  domestic  purposes:  provided,  that  the 
right  to  such  use  shall  not  interfere  with  any  prior  right  or 
claim  to  such  waters,  when  the  law  has  been  complied  with 
in  doing  the  necessary  work. 


416  LAW  OF  IRRIGATION. 

[Extent  of  Right.] 

§  5.  The  waters  of  the  streams  or  creeks  of  this  state 
may  be  made  available  to  the  full  extent  of  the  capacity 
thereof  for  mining,  milling,  agricultural  or  domestic  pur- 
poses, without  regard  to  deterioration  in  quality  or  diminu- 
tion in  quantity,  so  that  the  same  do  not  materially  affect  or 
impair  the  rights  of  the  prior  appropriator. 

[Procedure  of  Appropriation.] 

§  9.  Any  person  or  persons,  corporation  or  company,  ap- 
propriating the  waters  of  any  stream  or  creek  in  this  state, 
shall  turn  the  water  from  the  channel  at  least  twenty  feet  of 
ditch  or  flume  within  sixty  days  from  the  date  of  appropria- 
tion, and  turn  the  water  therein,  and  construct  at  least 
twenty  rods  of  said  ditch,  flume  or  dyke  if  needed  within  six 
months  from  the  date  of  such  appropriation,  and  turn  the 
water  therein,  and  within  thirty  days  from  the  date  of  loca- 
tion, the  locator  or  locators  of  such  water  right  shall  file  a 
location  certificate,  together  -with  a  map  showing  the  pro- 
posed dam  or  dams,  ditches  or  dykes,  flumes  or  canals,  giv- 
ing the  description  of  the  location  by  legal  subdivision  or  by 
metes  and  bounds  thereof,  with  the  register  of  deeds  in  the 
proper  county  within  which  such  water  right  is  located  and 
situated.  A  copy  of  such  certificate  shall  be  posted  at  or 
near  the  head  of  such  ditch,  flume  or  canal,  and  shall  con- 
tain the  name  of  the  locators,  the  date  of  location,  number  of 
inches  of  water  claimed  or  appropriated,  and  the  purpose  of 
the  appropriation,  and  in  no  case  shall  the  number  of  inches 
of  water  claimed  exceed  the  carrying  capacity  of  the  first 
twenty  feet  of  the  flume,  ditch  or  canal.  Nor  shall  said 
ditch,  flume  or  canal  be  enlarged  to  the  prejudice  or  injury 
of  a  subsequent  appropriator  before  such  enlargement. 


APPENDIX.  417 

[Construction  of  Works J 

§  10.  On  failure  to  commence  construction  of  any  such 
dam,  ditch,  flume,  dyke  or  canal,  or  any  of  them,  within  60 
days  from  date  of  filing  of  location,  and  prosecute  such  dam, 
ditch,  flume  or  dyke  to  a  final  completion  without  unneces- 
sary delay,  such  appropriation  shall  be  deemed  abandoned. 

[Priority  of  Appropriation.] 

§  4.  In  all  controversies  respecting  rights  of  water  un- 
der the  provisions  of  this  act,  the  same  shall  be  determined 
by  the  date  of  appropriation  as  respectively  made  by  the 
parties,  whether  for  mining,  milling,  agricultural  or  domes- 
tic purposes. 

[Right  of  Way.] 

§§2,  3,  6.  By  these  sections,  the  necessary  right  of  way 
across  the  lands  of  others  for  ditches,  etc.,  is  granted,  the 
right  being  limited  by  the  necessity  of  the  case,  and  the  per- 
son exercising  it  being  made  liable  to  the  party  injured  for 
actual  damage. 

[Vested  Rights  Protected — Duty  to  Bridge  Ditch  Crossings.] 

§  7.  This  act  shall  not  be  so  construed  as  to  impair  or  in 
any  way  or  manner  interfere  with  the  rights  of  parties  to 
the  use  of  the  waters  of  such  streams  or  creeks  acquired  be- 
fore the  passage  of  this  act:  provided,  that  all  water  rights 
or  ditches  that  have  not  been  used  or  worked  upon  for  one 
year  next  prior  to  the  passage  of  this  act  shall  be  deemed 
abandoned  and  forfeited,  and  subject  to  appropriation  anew. 
Any  person  or  persons,  corporation  or  company,  who  may  dig 
any  ditch,  canal,  dyke  or  flume,  or  erect  any  dam,  over  and 
across  any  public  road,  trail  or  highway,  or  who  use  the  wa- 


418  LAW  OP  IRRIGATION. 

ters  of  any  such  dam,  ditch,  dyke  or  canal,  shall  be  required 
to  bridge  the  same  and  keep  the  same  in  good  repair  at  such 
crossing  or  other  places  where  the  water  from  any  such  ditch, 
dyke,  dam,  flume  or  canal  may  flow  over  or  in  any  way  injure 
any  road,  trail  or  highway,  either  by  bridge  or  otherwise. 

§  8.  This  section  provides  for  the  recovery  of  a  penalty 
for  violation  of  the  preceding  section. 

[Irrigation  by  Township.] 

Kev.  Codes  1899,  §§  2665-2667.  These  sections  provide 
that,  upon  the  petition  of  ten  legal  voters  of  any  organized 
township,  the  township  board  shall  submit  to  the  votes  of  the- 
township  the  question  of  irrigation  by  building  dams  to  create 
ponds  or  reservoirs  on  any  of  the  creeks  or  coulees  in  the 
township,  and  if  the  question  be  .decided  in  favor  of  the  pro- 
posed works  by  a  two-thirds  vote,  it  shall  be  lawful  for  such 
voters  to  levy  a  tax,  not  exceeding  two  mills  on  the  dollar  of 
the  assessed  valuation  of  the  township,  to  be  expended  by  and 
under  the  direction  of  the  board  of  supervisors. 

[Unlawful  Diversion  of  Water.] 

§  7554.  It  shall  be  unlawful  for  any  person  to  divert 
any  of  the  waters  from  any  irrigation  ditch  in  this  state,  or 
to  interfere  in  any  manner  whatever  with  any  irrigation 
ditch,  without  first  having  obtained  the  permission  of  the 
owner  of  such  ditch,  or  of  the  person  or  persons  lawfully  in 
charge  thereof. 

§  7555.  Violation  of  the  preceding  section  is  made  a  mis- 
demeanor, punishable  by  a  fine  of  not  less  than  $25,  nor  more 
than  $50;  any  justice  of  the  peace  of  the  county  where  the 
offense  was  committed  being  given  jurisdiction  thereof. 


OREGON. 

[References  to  Hill's  Ann.  Laws  1892.] 

The  constitution  of  Oregon  contains  no  provisions  on  the 
subject  of  irrigation.  An  amendment  on  the  subject  was 
submitted  to  the  people  at  the  election  of  June,  1900,  but 
was  defeated.  The  statutory  law  consists  of  the  act  of  1891, 
regulating  the  appropriation  of  water  by  corporations  and  a 
few  scattered  sections.  There  are  no  provisions  applying  to 
the  appropriation  of  water  by  individuals  for  private  use. 
The  act  of  1891  is  here  given  by  sections,  the  other  provisions 
being  introduced  under  appropriate  heads. 

GENERAL  PROVISIONS. 

Illse  of  Water  for  General  Distribution  a  Public  TJseJ 

§  1.  The  use  of  the  water  of  the  lakes  and  running 
streams  of  the  state  of  Oregon  for  general  rental,  sale  or  dis- 
tribution for  purposes  of  irrigation,  and  supplying  water  for 
household  and  domestic  consumption,  and  watering  live 
stock,  upon  dry  lands  of  the  state,  is  a  public  use,  and  the 
right  to  collect  rates  or  compensation  for  such  use  of  said 
water  is  a  franchise.  A  use  shall  be  deemed  general,  within 
the  purview  of  this  act,  when  the  water  appropriated  shall  be 
supplied  to  all  persons  whose  lands  lie  adjacent  to  or  within 
reach  of  the  line  of  the  ditch  or  canal  or  flume  in  which  said 
water  is  conveyed,  without  discrimination  other  than  priority 
of  contract,  upon  payment  of  charges  therefor,  as  long  as 
there  may  be  water  to  supply.  [Laws,  p.  1930.] 


420  LAW  OF  IRRIGATION. 

[General  Powers  of  Corporations  as  to  Appropriation  of  Water, 
etc.] 

§  2.  A  corporation  organized  for  the  construction  and 
maintenance  of  a  ditch  or  canal  or  flume  for  general  irriga- 
tion purposes,  and  other  purposes  above  prescribed,  may  ap- 
propriate and  divert  water  from  its  natural  bed  or  channel, 
and  condemn  right  of  way  for  its  ditch  or  canal  or  flume,  and 
may  condemn  the  rights  of  riparian  proprietors  upon  the  lake 
or  stream  from  which  such  appropriation  is  made,  upon  com- 
plying with  the  terms  of  this  act.  Such  corporation  shall 
.also  have  the  right  to  condemn  lands  for  the  sites  of  reser- 
voirs for  storing  water  for  future  use,  and  for  rights  of 
way  for  feeders  carrying  water  to  such  reservoirs,  and  for 
ditches  carrying  the  same  away, -and  distributing  ditches,  and 
shall  have  the  right  to  take  from  any  running  stream  in  this 
state,  and  store  away,  any  water  not  needed  for  immediate 
use  by  any  person  having  a  superior  right  thereto. 

[Condemnation  of  Water  Rights.] 

§  8.  Such  corporations  are  given  the  power  to  condemn 
the  water  rights  of  riparian  owners,  but  it  is  provided  that 
no  riparian  owner  shall,  without  his  consent,  be  deprived  of 
water  for  household  or  domestic  use,  or  for  watering  his 
stock,  or  of  water  necessary  to  irrigate  crops  growing  on  his 
riparian  lands,  and  actually  used  therefor. 

[Abandonment  of  Water  Right.] 

§  22.  The  right  to  appropriate  water  hereby  granted 
may  be  lost  by  abandonment;  and  if  any  corporation  con- 
structing a  ditch  or  canal  or  flume  under  the  provisions  of 
this  act  shall  fail  or  neglect  to  use  the  same  for  the  period 
of  one  year  at  any  time,  it  shall  be  taken  and  deemed  to  have 


APPENDIX.  421 

abandoned  its  appropriation,  and  the  water  appropriated 
shall  revert  to  the  public,  and  be  subject  to  other  appropria- 
tions in  order  of  priority.  But  the  question  of  abandonment 
shall  be  one  of  fact,  to  be  tried  and  determined  as  other  ques- 
tions of  fact. 

PROCEDURE  OF  APPROPRIATION. 

[Notice  of  Appropriation  to  be  Posted.] 

§  4.  When  a  point  of  diversion  shall  have  been  selected, 
such  corporation  shall  post  in  a  conspicuous  place  thereat  a 
notice  in  writing  containing  a  statement  of  the  name  of  the 
ditch  or  canal  or  flume,  and  of  the  owner  thereof,  the  point 
at  which  its  headgate  is  proposed  to  be  constructed,  a  general 
description  of  the  course  of  said  ditch  or  canal  or  flume,  the 
size  of  the  ditch  or  canal  or  flume,  in  width  and  depth,  the 
number  of  cubic  inches  of  water,  by  miners'  measurement, 
under  a  six-inch  pressure,  intended  to  be  appropriated,  and 
the  number  of  reservoirs,  if  any. 

[Notice  and  Map  to  be  Recorded.] 

§  5.  This  section  provides  that,  within  ten  days  after 
posting  the  above  notice,  a  similar  notice,  together  with  a 
map  showing  the  general  route  of  the  ditch,  etc.,  shall  be 
filed  for  record  with  the  county  clerk  or  recorder  of  the 
proper  county;  and  within  sixty  days  after  the  completion 
of  such  ditch,  etc.,  a  map  of  definite  location  thereof  shall  be 
filed. 

[Construction  of  Works.] 

§  9.  Within  six  months  from  the  date  of  the  posting  of 
the  notice  above  prescribed,  the  corporation  proposing  to  ap- 
propriate the  water  therein  mentioned  shall  commence  the 


422  LAW  OF  IRRIGATION. 

actual  construction  of  its  proposed  ditch  or  canal  or  flume, 
and  shall  prosecute  the  same  without  intermission,  except  as 
resulting  from  the  act  of  God,  the  elements,  or  unavoidable 
casualty,  until  the  same  be  completed ;  and  the  actual  capac- 
ity of  said  ditch  or  canal  or  flume,  when  completed,  shall  de- 
termine the  extent  of  the  appropriation,  anything  contained 
in  the  notice  to  the  contrary  notwithstanding.  Upon  a  com- 
pliance with  the  provisions  of  this  act,  the  right  to  the  water 
appropriated  shall  relate  back  to  the  date  of  posting  said  no- 
tice. 

RIGHT  OF  WAY  FOR  DITCHES,  ETC. 

[Right  of  Entry  for  Location  and  Survey.! 

§  3.  Such  corporation  may  enter  upon  any  land  for  the 
purpose  of  locating  a  point  of  diversion  of  the  water  intend- 
ed to  be  appropriated,  and  upon  any  land  lying  between  such 
point  and  the  lower  terminus  of  its  proposed  ditch  or  canal 
or  flume,  for  the  purpose  of  examining  the  same,  and  of  lo- 
cating and  surveying  the  line  of  such  ditch  or  canal  or  flume, 
together  with  the  lines  of  necessary  distributing  ditches  and 
feeders  for  reservoirs,  and  to  locate  and  determine  the  sites 
for  reservoirs  for  storing  water. 

[Condemnation  of  Right  of  WayJ 

§  6.  When  such  corporation  shall  have  acquired  the  right 
to  appropriate  water  in  the  manner  hereinbefore  provided, 
it  may  proceed  to  condemn  lands  and  premises  necessary  for 
right  of  way  for  its  ditch  or  canal  or  flume,  and  likewise  for 
its  distributing  ditches  and  feeders,  and  for  sites  for  reser- 
voirs; but  right  of  way  for  the  main  line  of  said  ditch  or 
canal  or  flume  shall  not  exceed  one  hundred  feet  in  width, 
and  for  each  distributing  ditch  or  feeder  thirty  feet  in  width, 


APPENDIX.  423 

and  for  a  site  for  each  reservoir  twenty  acres  from  one  own- 
er, or  for  every  ten  thousand  inches  of  water,  miners'  meas- 
urement, as  aforesaid,  or  fraction  thereof  over  half,  of  the 
capacity  of  the  main  ditch  or  canal  or  flume,  for  every  twen- 
ty miles  of  its  length. 

§  7.  This  section  provides  that  when  the  corporation  is 
unable  to  agree  with  the  landowner  as  to  the  compensation 
to  be  paid  for  the  land  taken,  or  if  such  owner  be  absent  from 
the  state  or  incapable  of  acting,  the  corporation  may  main- 
tain an  action  in  the  circuit  court  of  the  county  in  which  the 
land  is  situated  for  the  condemnation  of  the  land,  the  con- 
demnation proceedings  to  be  in  accordance  with  the  pre- 
scribed mode  of  condemnation  of  lands  by  private  corpora- 
tions. 

[Shortest  Route  to  be  'Chosen.  1 

§  12.  Whenever  any  corporation  organized  as  aforesaid 
shall  find  it  necessary  to  construct  its  ditch  or  canal,  flume, 
distributing  ditches  or  feeders  across  the  improved  or  occu- 
pied lands  of  another,  it  shall  select  the  shortest  and  most 
direct  route  practicable,  having  reference  to  cost  of  construc- 
tion, upon  which  such  ditch  or  canal,  flume,  distributing 
ditches  or  feeders  can  be  constructed  with  uniform  or  nearly 
uniform  grade. 

[Joint  Grade,  Use  of  Ditches.  1 

§  13.  This  section,  as  originally  enacted,  began  with  a 
provision,  copied  from  Mills'  Ann.  St.  Colo.  §  2261,  that  im- 
proved or  occupied  land  should  not  be  crossed  by  two  or  more 
ditches  when  one  would  suffice.  This  part  of  the  section  was 
recently  repealed,  and  the  remainder  of  the  section  re-enact- 
ed. This  provides  that  any  corporation  having  constructed  a 


424  LAW  OF  IRRIGATION. 

ditch,  canal  or  flume  shall  allow  any  other  corporation  to  en- 
large the  same,  and  use  it  jointly  with  the  owner,  upon  pay- 
ment to  the  latter  of  a  reasonable  proportion  of  the  cost  of 
constructing  and  maintaining  such  ditch,  canal  or  flume; 
such  corporation  to  be  jointly  liable  to  any  person  damaged 
along  the  line  of  common  user  by  reason  of  the  faulty  con- 
struction of  such  portion  of  such  ditch,  canal  or  flume,  and 
the  corporation  securing  the  use  of  the  same  shall  be  liable 
to  the  owner  corporation  for  all  damage  by  it  sustained  grow-' 
ing  out  of  the  enlargement  of  said  ditch,  canal  or  flume,  or 
the  increased  volume  of  water  turned  therein.  Before  pro- 
ceeding to  secure  the  right  to  make  use  of  a  ditch,  canal  or 
flume,  the  corporation  seeking  to  do  so  shall  execute  to  the 
owner  corporation  a  bond  securing  its  liability  as  above 
stated.  [Laws  1899,  p.  201.] 

[Use  of  Natural  Channels.] 

§  14.  Any  corporation  constructing  a  ditch  or  canal, 
flume,  distributing  ditches  or  feeders,  under  the  provisions  of 
this  act,  may  make  use  of  natural  depressions  in  the  earth 
along  the  line  thereof  to  all  intents  and  purposes  as  parts  of 
said  ditch  or  canal,  flume,  distributing  ditches  or  feeders; 
and  it  may  conduct  the  water  appropriated  along  the  chan- 
nel of  any  natural  stream,  but  not  so  as  to  raise  the  water 
thereof  above  ordinary  high-water  mark,  and  may  take  the 
same  out  again  at  any  point  desired,  without  regard  to  the 
prior  rights  of  others  to  water  from  the  same  stream ;  but  due 
allowance  shall  be  made  for  evaporation  and  scapage  [seep- 
age.] 

[Extending  Headgate  Up  Stream — Change  of  Channel.! 

§   11.     This  section  is  copied  from  Mills'  Ann.  St.  Colo. 


APPENDIX.  425 

§  2264,  but  provides,  further,  that  when,  from  any  cause, 
the  line  of  any  ditch,  canal,  flume  or  feeder,  as  originally  con- 
structed, can  no  longer  be  maintained,  the  corporation  own- 
ing the  same  may  alter  the  course  thereof,  and  for  such  pur- 
pose condemn  lands,  for  right  of  way,  as  in  case  of  original 
construction. 

[Right  of  Way  on  State  Lands J 

By  chapter  75  of  the  Miscellaneous  Laws,  a  right  of  way 
for  the  construction  of  a  water  ditch  for  irrigation  or  other 
purposes  is  granted  to  individuals  or  corporations  who  may 
construct  such  ditches  over  state  lands,  for  a  distance  of 
twenty-five  feet  on  each  side  of  such  ditch.  Misc.  Laws,  §§ 
4058-4060.  By  section  25  of  the  act  of  1891,  a  right  of  way 
to  the  extent  specified  in  section  6  is  granted  to  corporations 
appropriating  water  under  the  act,  across  all  lands  belong- 
ing to  the  state,  and  not  under  contract  of  sale. 

DUTIES  AND  LIABILITIES  OF  CORPORATION. 

CDuty  to  Maintain  HeadgateJ 

§   15.     This  section  is  copied  from  Mills'  Ann.  St.  Colo. 

§  2285. 

[Bridging  Ditches  Crossing  Public  Highways.] 

§  17.  This  section  is  a  combination  of  Mills'  Ann.  St. 
Colo.  §§  2276,  2277,  2281,  and  requires  the  corporation  to 
construct  over  its  ditch  or  canal  where  it  crosses  a  public 
highway  a  substantial  bridge  not  less  than  14  feet  in  width, 
such  bridge  to  be  completed,  without  interruption  of  travel, 
within  three  days  from  the  time  the  highway  is  intersected. 
If  not  so  constructed  by  the  corporation,  the  road  overseer 
shall  construct  the  bridge,  and  bring  an  action  as  supervisor 


426  .LAW  OF  IRRIGATION. 

to  recover  the  expense  of  construction,  with  costs  and  dis- 
bursements and  reasonable  attorney  fees. 

[Duty  to  Maintain  Embankments.] 

§  18.  Every  corporation  constructing  a  ditch  or  canal 
or  flume  under  the  provisions  of  this  act  shall  carefully  keep 
and  maintain  the  embankments  and  walls  thereof,  and  of 
any  reservoir  constructed  to  be  used  in  conjunction  there- 
with, so  as  to  prevent  the  water  from  wasting  and  from 
flooding  or  damaging  the  premises  of  others ;  and  it  shall  not 
divert  at  any  time  any  water  for  which  it  has  not  actual  use 
or  demand. 

[Liability  for  Damages  from  Ditches J 

§  16.  Every  corporation  constructing  a  ditch  or  canal, 
flume  or  reservoir,  under  the  provisions  of  this  act  shall  be 
liable  for  all  damages  done  to  the  persons  or  property  of 
others  arising  from  leakage  or  overflow  of  water  therefrom 
growing  out  of  want  of  strength  in  the  banks  or  walls,  or 
negligence  or  want  of  care  in  the  management  of  said  ditch 
or  canal,  flume  or  reservoir:  provided,  that  damage  result- 
ing from  extraordinary  and  unforeseen  action  of  the  ele- 
ments, or  attributed  in  whole  or  in  part  to  the  wrongful  in- 
terference of  another  with  said  ditch  or  canal,  flume  or 
reservoir,  which  may  not  be  known  to  said  corporation  for 
such  length  of  time  as  would  enable  it,  by  the  exercise  of 
reasonable  efforts,  to  remedy  the  same,  shall  not  be  recovered 
against  said  corporation. 

SUPPLYING  WATER  TO  CONSUMERS. 

[Distributing  Ditches — Duty  to  Furnish  Water  to  Consumers.] 
§   19.      Such  corporation  may  acquire  the  right  of  way 


APPENDIX.  427 

across  lands  lying  contiguous  to  its  ditch  or  canal  or  flume, 
for  distributing  ditches,  in  the  manner  hereinbefore  provid- 
ed, but  it  shall  not  be  compelled  so  to  do,  nor  to  construct 
distributing  ditches  upon  any  lands  for  the  use  of  the  own- 
ers thereof.  But  when  any  person  shall  construct  a  distrib- 
uting ditch  to  the  line  of  the  right  of  way  for  the  ditch  or 
canal  or  flume  at  any  practicable  point,  and  shall  tender  to 
such  corporation  the  rates  usually  charged  consumers  of  wa- 
ter along  the  line  of  said  ditch  or  canal  or  flume,  for  any 
amount  of  water  said  corporation  may  have  in  its  ditch  or 
canal  or  flume,  or  may  have  the  right  and  ability  to  appro- 
priate above  the  amount  already  sold,  said  corporation  shall 
connect  such  distributing  ditch  with  its  ditch  or  canal  or 
flume,  and  turn  therein  the  amount  of  water  for  which 
tender  is  made,  and  if  it  shall  fail  or  refuse  so  to  do,  it  shall 
be  liable  to  such  person  for  all  loss  or  damage  sustained  by 
reason  of  the  failure  to  procure  such  water.  Such  corpora- 
tion shall  not  be  liable  for  all  loss  or  damage  sustained  by  any 
person  by  reason  of  the  defective  condition  or  careless 
operation  of  distributing  ditches  not  by  it  constructed  or 
operated,  and  not  occasioned  in  whole  or  in  part  by  its  wrong- 
ful or  negligent  act. 
[Lien  on  Crop.] 

§  20.  Any  corporation,  acting  under  the  provisions  of 
this  act,  which  shall  supply  water  to  any  person  for  the  irri- 
gation of  crops,  shall  have  a  lien  upon  all  crops  raised  by  the 
use  of  such  water  for  the  reasonable  value  of  the  water  sup- 
plied, which  lien  shall  be  a  continuing  one,  and  shall  bind 
said  crops  after  as  well  as  before  the  same  have  been  gath- 
ered, and  without  record  shall  be  preferred  to  all  other 
liens  or  incumbrances  upon  said  crops  whatever.  Such  liens 
may  be  enforced  by  a  suit  in  equity. 


428  LAW  OF  IRRIGATION. 

[Fixing  Water  Kates.] 

§  26.  This  act  may  at  any  time  be  amended  by  the 
legislative  assembly,  and  commissioners  for  the  manage- 
ment of  water  rights  and  the  use  of  water  may  be  appointed, 
and  rates  for  the  use  of  water  may  be  fixed,  by  the  legisla- 
tive assembly  or  by  such  commissioners;  but  rates  shall  not 
be  fixed  lower  than  will  allow  the  net  profits  of  any  ditch 
or  canal  or  flume  or  system  thereof  to  equal  the  prevailing 
legal  rate  of  interest  on  the  amount  of  money  actually  paid 
in  and  employed  in  the  construction  and  operation  of  said 
ditch  or  canal  or  flume,  or  system  thereof. 

[Adjudication  of  Priorities.] 

§  24.  In  any  suit  which  may  hereafter  be  commenced 
for  the  protection  of  rights  to  water  acquired  under  the  pro- 
visions of  this  act,  the  plaintiff  may  make  any  or  all  per- 
sons who  have  diverted  water  from  the  same  stream  or 
source  parties  to  such  suit,  and  the  court  may  in  one  de- 
cree determine  the  relative  priorities  and  rights  of  all  par- 
ties to  such  suit.  Any  person  claiming  a  right  on  said 
stream  or  source,  not  made  a  party  to  such  suit,  may  become 
such  on  application  to  the  court,  when  it  is  made  to  appear 
that  he  is  interested  in  the  result  of  the  suit,  and  may  have 
Kis  right  determined;  and  the  court  may,  at  any  stage,  on 
its  own  motion,  require  any  or  all  persons  having  or  claim- 
ing rights  to  water  on  said  stream  or  source  to  be  brought 
in  and  made  parties  to  said  suit,  when  it  appears  that  a  com- 
plete determination  of  the  issues  involved  cannot  be  made 
without  the  presence  of  such  person  or  persons. 


APPENDIX.  429 

MISCELLANEOUS  PROVISIONS. 

[Injury  to  Ditches,  etcJ 

§  23.  Maliciously  injuring  the  ditches,  etc.,  of  anoth- 
er, or  taking  water  therefrom  without  the  .consent  of  the 
owner,  with  intent  to  steal  the  same,  is  made  a  misdemean- 
or, and  the  person  so  trespassing  is  also  made  liable  to  the 
party  injured  for  damages. 

[Ditches,  etc.,  Real  Estate — Conveyances.] 

§.21.  All  ditches  or  canals  and  flumes  permanently  af- 
fixed to  the  soil,  constructed  under  the  provisions  of  this 
act,  are  hereby  declared  to  be  real  estate,  and '  the  same,  or 
any  interest  therein,  shall  be  transferred  by  deed  only,  duly 
witnessed  and'  acknowledged.  The  vendee  of  the  same,  or 
any  interest  therein,  at  any  stage,  shall  succeed  to  all  the 
rights  of  his  vendor,  and  shall  be  subject  to  the  same  liabili- 
ties during  his  ownership.  See,  also,  Laws  1898,  p.  18, 

§  9- 

/ 

[Existing  Appropriations  Respected — Priorities.  I 

§  10.  By  this  section  it  is  provided  that  all  existing 
valid  appropriations  shall  be  respected  and  upheld,  and  that 
all  controversies  respecting  rights  to  water  under  this  act 
shall  be  determined  by  the  date  of  the  respective  appropria- 
tions made  thereunder  by  the  parties. 

[Appropriation  of  Waste  and  Seepage  Water.] 

This  provision  is  identically  the  same  as  Mills'  Ann.  St. 
Colo.  §  2269.  [Laws  1893,  p.  150,  §  1.] 

I  Use  of  Wheels,  etc.,  to  Raise  Water.] 

Any  person  who  owns  or  has  the  possessory  right  to  any 


430  LAW  OF  IRRIGATION. 

land  bordering  on  any  lake  or  natural  stream  of  water  shall 
have  the  right  to  employ  wheels,  pumps,  hydraulic  engines 
or  other  machinery  for  the  purpose  of  raising  water  to  the 
level  required  for  the  use  of  such  water  in  irrigating  any 
land  belonging  to  such  owner :  provided,  that  the  use  of  such 
water  shall  not  conflict  with  the  better  or  prior  right  of  any 
other  person.  [Laws  1893,  p.  150,  §  2.] 

[Relative  Preference  to  be  Given  the  Several  Uses  of  Water.] 

When  the  waters  of  any  natural  stream  are  not  sufficient 
for  the  service  of  all  those  desiring  the  use  of  the  same, 
those  using  the  water  for  domestic  purposes  shall,  subject 
to  such  limitations  as  may  be  prescribed  by  law,  have  the 
preference  over  those  claiming  such  water  for  any  other 
purpose ;  and  those  using  the  water  for  agricultural  purposes 
shall  have  the  preference  over  those  using  the  same  for  man- 
ufacturing purposes.  [Laws  1893,  p.  150,  §  3.] 

IRRIGATION    DISTRICTS.. 

By  an  act  approved  February  10,  1895,  provision  is  made 
for  the  organization  of  irrigation  districts,  as  in  California. 
[Laws  1895,  p.  13.] 


SOUTH  DAKOTA. 

There  is  no  constitutional  provision  in  this  state  on  the 
subject  of  irrigation.  The  statutes  of  South  Dakota  relat- 
ing to  irrigation  are  unlike  those  of  the  other  states.  The 
most  conspicuous  feature  of  the  legislation  of  this  state  is 
the  elaborate  provision  made  for  irrigation  by  means  of 
artesian  wells.  [Ann.  Codes  1899,  §  2754  et  seq.]  Pro- 
vision is  also  made  for  the  appointment  by  the  governor  of 
a  "state  engineer  of  irrigation,"  whose  powers  and  duties 
are  prescribed.  [Sections  2802-2812.]  The  other  provis- 
ions are  as  follows: 

STORAGE  OF   SURFACE  WATERS. 

§  2906.  That  all  surface  waters  in  the  state  of  South 
Dakota  are  hereby  appropriated  to  the  use  and  benefit  of 
the  public. 

§§  2907-2915.  These  sections  provide  for  the  construc- 
tion of  dams  by  the  supervisors  of  each  township  for  the 
storage  of  surface  water. 

§  2915.  Provided,  that  the  law  shall  take  effect  only 
in  such  counties  as  shall  adopt  it  by  a  majority  vote  at  any 
election. 

§§  2916,  2917.  These  sections  prescribe  the  manner  of 
submitting  the  question  to  a  vote  of  the  voters  of  a  county. 

STORAGE  OF  SURPLUS  WATER. 
§   2918.     All  surplus  water  above  the  normal  amount  in 


432  LAW  OF  IRRIGATION. 

lakes,  rivers,  creeks,  or  other  bodies  of  water  is  hereby  ap- 
propriated to  the  use  and  benefit  of  the  people  of  this  state. 

§  2919.  The  board  of  county  commissioners  in  any 
county  in  the  state  of  South  Dakota  shall,  upon  a  petition 
signed  by  a  majority  of  the  legal  voters  of  such  county,  to 
be  determined  by  the  poll  books  in  the  office  of  the  auditor 
of  said  county,  proceed  to  build  dams  across  streams,  to  cut 
ditches,  and  otherwise  prepare  to  and  to  store  all  surplus 
water,  as  described  in  section  one  of  this  act.  [Section 
2918.] 

§  2920.  Any  damage  arising  to  adjacent  property  shall 
be  settled  in  the  manner  prescribed  by  law  for  settling  simi- 
lar damages. 

RESERVOIRS  FOR  IRRIGATION. 

§  2921.  It  shall  be  lawful  for  any  person,  company  or 
corporation  to  construct  and  maintain,  or  permit  to  be  con- 
structed and  maintained,  a  dam  or  dams  upon  and  adjacent 
to  their  pwn  lands,  in  any  of  the  natural  streams  of  the 
state,  and  to  take  from  said  streams  any  unappropriated 
water  not  needed  for  immediate  use,  for  domestic  and  irri- 
gating purposes,  and  also  to  construct  and  maintain,  or  per- 
mit to  be  constructed  and  maintained,  reservoirs  for  the 
purpose  of  storing  water,  taken  from  said  streams,  to  be 
used  for  irrigating  agricultural  lands;  and  to  construct  and 
maintain  ditches,  sluiceways,  or  waterways  for  carrying  such 
water  to  and  from  such  streams,  or  to  and  from  such  reser- 
voirs, and  to  construct  and  maintain  water  wheels  and  ma- 
chinery to  be  propelled  by  the  waters  of  such  stream  or 
otherwise  for  the  purpose  of  raising  the  water  therefrom  for 
the  aforesaid  purposes,  or  to  keep,  maintain  and  use  other 
machinery  and  appliances  for  like  purposes:  provided,  that 


APPENDIX.  433 

uo  dam  shall  be  built  or  constructed  so  as  to  cause  the  waters 
of  such  stream  to  flow  out  of  the  natural  channel  or  banks 
of  such  stream  at  its  ordinary  stage,  and  the  party  dam- 
aging or  injuring  the  lands  or  possessions  of  another  by  rea- 
son of  such  dams  or  reservoirs  shall  be  liable  to  the  party 
injured  for  the  actual  damage  occasioned  thereby. 

§§  2922-2925.  These  sections  prescribe  details  as  to 
the  construction  of  dams,  etc.,  and  the  assessment  of  dam- 
ages. 


TEXAS. 
GENERAL  PROVISIONS. 

[References  to  Sayles'  Civ.  St.  1900.] 

The  Texas  constitution  contains  no  provision  on  the  sub- 
ject of  irrigation.  The  statutes  consist  of  the  act  of  1852, 
regulating  the  mode  of  irrigation,  and  the  act  of  1895,  pro- 
viding for  the  appropriation  of  water,  and  superseding  the 
prior  acts  of  1889  and  1893.  [As  to  construction  of  such 
prior  acts,  see  the  text,  section  25.] 

REGULATION  OF  IRRIGATION  BY  COMMISSIONERS'  COURTS 
[Commissioners'  Court  to  Regulate  Ditches,  Etc.] 

Art.  3108.  The  commissioners'  courts  are  authorized  to 
order,  regulate  and  control  the  time,  mode  and  manner  of 
erecting,  repairing,  cleaning,  guarding  and  protecting  the 
dams,  ditches,  roads  and  bridges  belonging  to  any  irrigation 
farms  and  property,  and  the  fences  or  other  like  protection 
in  and  around  such  farms:  provided,  that  such  farms,  dams, 
ditche's  and  fences  be  owned  conjointly  by  two  or  more  dif- 
ferent persons:  and  further  provided,  that  the  same  be  sit- 
uated outside  of  a  corporation  having  jurisdiction  thereof. 

[General  Powers  of  Court  as  to  Regulation  of  Irrigation.] 

Art.  3109.  Said  courts  shall  have  power  to  establish  all 
needful  police  regulations  for  the  government  and  control 
of  irrigation  farms  and  property,  and  said  courts  may  assess 


APPENDIX.  435 

and  collect  fines  for  breaches  of  any  regulations  established 
by  them  or  by  the  joint  owners  of  such  farms  and  property, 
or  recognized  by  said  court  as  consistent  with  ancient  usage 
and  the  law  of  the  state ;  said  courts  may  order  meetings  of 
joint  owners  for  the  election  of  commissioners  and  other  of- 
ficers, and  for  the  consideration  of  any  of  their  other  interests, 
or  the  said  court  may  proceed  and  elect  said  officers,  and 
may  regulate  the  right  of  way,  the  stoppage  and  passage  of 
the  water,  and  the  right  distribution  of  the  shares  of  said 
water ;  they  may  forbid  the  running  of  stock  at  large  on  the 
common  farm ;  they  may  fine  for  taking  water  out  of  turn, 
and  for  carelessness  and  wantonness  in  overflowing  roads 
and  neighboring  lands ;  and  generally  they  may  do  or  cause 
to  be  done  what  they  may  consider  just  and  needful  or  bene- 
ficial to  the  joint  owners. 

[Court  may  Lease  Suerte  of  Delinquent.] 

Art.  3110.  If  any  owner  of  a  suerte  or  subdivision  lot 
in  said  farm  shall  fail  or  refuse  to  do  or  pay  his  proportion 
of  labor  and  expense  in  and  on  any  dam,  ditches,  fences, 
bridges  or  other  needful  appurtenances  to  such  irrigation 
farms,  the  commissioners'  court  may  lease  said  suerte :  pro- 
vided, that  such  leasing  shall  be  at  public  outcry,  after  ten 
or  more  days  of  due  public  notice,  and  to  the  persons  bidding 
the  shortest  term,  not  to  exceed  four  years,  who  shall  give 
good  security  to  discharge  faithfully  all  such  charge  and 
work. 

[Court  may  License  Irrigation.] 

Art.  3111.  Upon  the  application  of  the  owners  of  any 
suitable  lands  and  water,  and  the  assurance  and  the  proper 
security  given  to  the  county,  if  required  by  said  court,  that 


436  LAW  OF  IRRIGATION. 

no  injury  will  result  to  the  public  health,  the  commission- 
ers' courts  are  authorized  by  decree  to  license  and  permit 
any  such  owners  to  proceed  and  dam  the  water,  and  to  ditch, 
fence  and  irrigate  their  lands:  provided,  that  joint  owners 
of  all  irrigation  farms  shall  be  liable  for  damages  done  to 
the  public,  or  to  any  person,  by  reason  of  the  overflow  of  such 
irrigation  water;  suit  to  be  brought  against  the  person  oc- 
casioning the  injury,  or  in  such  other  way  as  may  be  sanc- 
tioned by  said  court. 

IMay  Condemn  Land  for  Ditches,  etc.! 

Art.  3112.  If,  in  the  establishment  of  any  new  project 
•of  irrigation,  or  the  extension  thereof,  the  commissioners' 
court  deems  it  of  sufficient  importance  to  order  a  dam  or 
ditch  to  be  made  on  the  lands  of  any  person  refusing  to  con- 
sent thereto,  the  said  court,  after  giving  such  person  actual 
notice  in  writing,  and  full  hearing  and  consideration  of  his 
objections,  may  decree  the  making  of  the  same,  and  shall 
depute  two  or  more  discreet  and  disinterested  freeholders 
of  the  vicinage  to  arbitrate  and  fix  the  amount  of  damage 
permanently  sustained  by  such  person,  which  shall,  by  that 
or  another  such  commission,  be  levied  upon  and  paid  forth- 
with by  the  applicants  for  such  irrigation  project,  in  the 
ratio  of  the  interest  and  several  shares  of  the  said  applicants 
and  joint  owners;  and  the  said  courts  may,  after  like  per- 
sonal notice  to  parties  interested,  order  the  multiplication  or 
extension  of  any  ditches  for  irrigation,  and  of  irrigation 
farms  at  and  below,  or  at  the  sides  of,  such  property,  when 
it  shall  be  the  duty  of  such  court  to  proceed  and  assess  all 
just  fines  and  equitable  damages,  and  to  fix  and  direct  the 
rate  and  amount  and  kind  of  work,  labor  and  tax  to  be  paid 


APPENDIX.  437 

by  any  of  such  applicants  and  others,  according  to  their  in- 
terest. 

[May  Discontinue  Ditches,  etcJ 

Art.  3113.  Where  the  health  of  the  public  may  be  in- 
jured by  irrigation  or  the  damming  up  of  water  for  any 
purpose,  it  shall  be  the  duty  of  the  commissioners'  courts, 
after  due  and  mature  hearing  and  consideration,  to  decree 
the  discontinuance,  and  they  shall  proceed  and  break  up  and 
discontinue  all  such  dams,  ditches  and  irrigation,  whether 
the  same  have  been  heretofore  ever  so  long  in  existence,  or 
may  be  hereafter  started. 

[May  Dispense  with  Fences  in  Certain  Cases.] 

Art.  3114.  In  counties  where  the  commissioners'  courts 
may  decree  and  adjudge  that  fences  around  irrigation  farms 
may  be  dispensed  with,  they  may  make  all  fair,  equal  and 
proper  regulations  for  the  keeping  up  or  herding  of  hogs, 
cattle  and  other  stock,  and  for  the  security  and  protection 
of  the  crops  and  farms:  provided,  that  if  ten  or  more  vot- 
ers shall  make  written  protest  against  such  decree,  then  the 
said  court  shall  proceed  by  notice  and  a  public  election,  and 
ascertain  if  two-thirds  of  the  voters  be  in  favor  of  dispens- 
ing with  the  use  of  fences;  otherwise  it  shall  not  be  so  de- 
creed. 

THE  APPROPRIATION  OF  WATER. 

[Unappropriated  Waters  Property  of  PnblicJ 

Art.  3115.  The  unappropriated  waters  of  the  ordinary 
flow  or  underflow  of  every  running  or  flowing  river  or  nat- 
ural stream,  and  the  storm  or  rain  waters  of  every  river  or 
natural  stream,  canyon,  ravine,  depression  or  watershed 


438  LAW  OF  IRRIGATION. 

within  those  portions  of  the  state  of  Texas  in  which,  by  rea- 
son of  the  insufficient  rainfall,  or  by  reason  of  the  irregu- 
larity of  the  rainfall,  irrigation  is  beneficial  for  agricultural 
purposes,  are  hereby  declared  to  be  the  property  of  the  pub- 
lic, and  may  be  acquired  by  appropriation  for  the  uses  and 
purposes  and  in  the  manner  as  hereinafter  provided. 

[Storage  and  Diversion  of  Storm  or  Rain  Waters.] 

Art.  3116.  The  storm  or  rain  waters,  as  described  in  the 
preceding  article,  may  be  held  or  stored  in  dams,  lakes  or 
reservoirs  built  and  constructed  by  a  person,  corporation  or 
association  of  persons  for  irrigation,  mining,  milling,  the 
construction  of  waterworks  for  cities  and  towns,  or  stock 
raising,  within  those  portions  of  Texas  described  in  the  fore- 
going article,  and  all  such  waters  may  be  diverted 'by  the 
person,  corporation  or  association  of  persons  owning  or  con- 
trolling such  dam,  reservoir  or  lake  for  irrigation,  mining, 
milling,  the  construction  of  waterworks  for  cities  and  towns, 
and  stock  raising. 

[Diversion  of  Ordinary  Flow  of  Streams.] 

Art.  3117.  The  ordinary  flow  or  underflow  of  the  run- 
ning water  of  every  natural  river  or  stream  within  those 
portions  of  Texas  described  in  article  3115  may  be  diverted 
from  its  natural  channel  for  irrigation,  mining,  milling, 
the  construction  of  waterworks  for  cities  and  towns,  or  stock 
raising:  provided,  that  such  flow  or  underflow  of  water  shall 
not  be  diverted  to  the  prejudice  of  the  rights  of  the  riparian 
owner  without  his  consent,  except  after  condemnation  there- 
of in  the  manner  as  hereinafter  provided. 

[Appropriation  must  be  for  Certain  Purposes.] 

Art.  3118.     The  appropriation  of  water  must  be  either 


APPENDIX.  439 

for  irrigation,  mining,  milling,  the  construction  of  water- 
works for  cities  and  towns,  or  stock  raising. 

[Priority  of  Appropriation.] 

Art.  3119.  As  between  appropriators,  the  first  in  time 
is  the  first  in  right. 

[Statement  of  Route  of  Canal,  etc.,  to  be  Filed.! 

Art.  3120.  Every  person,  corporation  or  association  of 
persons  who  have  constructed  or  may  hereafter  construct 
any  ditch,  canal,  reservoir,  dam  or  lake,  for  the  purposes 
named  in  this  chapter,  and  taking  the  water  from  any  nat- 
ural stream,  storage  reservoir,  dam  or  lake,  shall,  within 
ninety  days  after  this  chapter  goes  into  effect,  or  within 
ninety  days  after  commencement  of  such  construction,  file 
and  cause  to  be  recorded  in  the  office  of  the  county  clerk  of 
the  county  where  the  headgate  of  such  ditch  or  canal  may 
be  situated,  or  to  which  said  county  may  be  attached  for 
judicial  purposes,  in  a  well-bound  book,  to  be  kept  by  said 
clerk  for  that  purpose,  a  sworn  statement  in  writing  show- 
ing approximately  the  number  of  acres  of  land  that  will  be 
irrigated,  the  name  of  such  ditch  or  canal,  the  point  at  which 
the  headgate  thereof  is  situated,  the  size  of  the  ditch  or  canal, 
in  width  and  depth,  and  the  carrying  capacity  thereof  in 
cubic  feet  per  second  of  time,  the  name  of  said  stream  from 
which  said  water  is  taken,  the  time  when  the  work  was  com- 
menced, the  name  of  the  owners  or  owner  thereof,  together 
with  a  map  showing  the  route  of  such  ditch  or  canal;  and 
when  the  water  is  to  be  taken  from  a  reservoir,  dam  or  lake, 
the  statement  above  provided  for  shall  show,  in  addition  to 
the  ditch  and  other  things  provided  for,  the  locality  of  the 
proposed  dam,  reservoir  or  lake,  giving  the  names  or  num- 


440  LAW  OF  IRRIGATION. 

bers  of  the  surveys  upon  which  it  is  to  be  located,  its  hold- 
ing capacity  in  cubic  feet  of  water,  the  acreage  and  surface 
feet  of  land  that  will  be  covered,  and  the  limits  of  such  lake, 
reservoir  or  dam,  and  the  area  of  the  watershed  from  which 
the  storm  or  rain  water  will  be  collected. 

[Doctrine  of  Relation.] 

Art.  3121.  By  compliance  with  the  provisions  of  the 
preceding  articles,  the  claimant's  right  to  the  use  of  water 
relates  back  to  the  time  when  the  work  of  excavation  or  con- 
struction was  commenced  on  said  ditch,  canal,  reservoir, 
dam  or  lake:  provided,  that  a  failure  to  file  such  statement 
shall  in  no  wise  work  a  forfeiture  of  such  heretofore  acquir- 
ed rights,  nor  prevent  such  claimants  of  such  heretofore  ac- 
quired rights  from  establishing  such  rights  in  the  courts. 

[Appropriation  of  Water — Construction  of  Works.] 

Art.  3122.  Any  person,  firm,  association  of  persons  or 
corporation  may  acquire  the  right  to  and  appropriate  for 
irrigation  purposes  the  unappropriated  waters  of  the  ordi- 
nary flow  or  underflow  of  every  running  or  flowing  river  or 
natural  stream,  and  the  storm  or  rain  water  of  _every  river 
or  natural  stream,  canyon,  ravine,  depression  or  watershed 
within  those  portions  of  the  state  referred  to  in  article  3115, 
by  filing  a  sworn  statement  in  writing,  to  be  recorded  as  pro- 
vided in  article  3120,  declaring  his  or  its  intention  of  ap- 
propriating such  water.  Said  statement  shall  also  show 
[certain  prescribed  facts  relative  to  the  land  to  be  irrigated, 
the  ditch  or  canal,  etc.]  :  provided,  any  person,  association 
of  persons  or  corporation  who  has  heretofore  had  a  survey 
made  of  the  proposed  route  of  his  or  its  ditch  shall  have  a 
preference  right,  at  any  time  within  ninety  days  from  the 


APPENDIX.  441 

time  this  chapter  shall  take  effect,  to  file  the  statement 
hereinbefore  required  for  the  appropriation  of  water. 
Within  ninety  days  next  after  filing  of  said  statement,  the 
party  or  corporation  claiming  the  right  to  appropriate  the 
water  shall  begin  actual  construction  of  the  proposed  ditch, 
canal,  dam,  lake  or  reservoir,  and  shall  prosecute  the  work 
thereon  diligently  and  continuously  to  completion. 

[Completion  Defined.! 

Art.  3123.  "Completion,"  as  used  in  the  preceding  sec- 
tion, is  hereby  defined  to  be  the  conducting  of  the  water  in 
the  main  canal  to  the  place  of  the  intended  use. 

[Unlawful  Diversion  of  Water.  ] 

Art.  3124.  Whenever  any  person,  corporation  or  asso- 
ciation of  persons  shall  become  entitled  to  the  use  of  any 
water  of  any  river,  stream,  canyon  or  ravine,  or  the  storm 
or  rain  water  hereinbefore  described,  it  shall  be  unlawful  for 
any  person,  corporation  or  association  of  persons  to  appro- 
priate or  divert  any  such  water  in  any  way,  except  that  the 
owner  whose  land  abuts  on  a  running  stream  may  use  such 
water  therefrom  as  may  be  necessary  for  domestic  purposes, 
and  any  one  whose  land  may  be  located  within  the  area  of 

the  watershed  from  which  the  storm  or  rain  waters  are  col- 

1 

lected  may  construct  on  his  land  such  dams,  reservoirs  or 
lakes  as  may  be  necessary  for  the  storage  of  water  for  do- 
mestic purposes  for  such  owner  of  land :  provided,  that  the 
excess  of  such  water  not  used  or  contracted  for  use  by  such 
person,  corporation  or  association  of  persons  for  irrigation, 
mining,  milling,  waterworks  for  cities  or  towns,  or  stock 
raising,  may  be  appropriated  by  any  person,  corporation  or 
association  of  persons  in  the  manner  hereinbefore  provided 
for  the  appropriation  of  water. 


442  LAW  OF  IRRIGATION. 

IRRIGATION  CORPORATIONS. 

[Organization,  Powers  and  Duties  of  Corporations.] 

Art.  3125.  Corporations  may  be  formed  and  chartered 
under  the  provisions  of  this  chapter,  and  of  the  general  in- 
corporation laws  of  the  state  of  Texas,  for  the  purpose  of 
constructing,  maintaining  and  operating  canals,  ditches, 
flumes,  feeders,  laterals,  reservoirs,  dams,  lakes  and  wells, 
and  of  conducting  and  transferring  water  to  all  persons  en- 
titled to  the  same  for  irrigation,  mining,  milling,  to  cities 
and  towns  for  waterworks  and  for  stock  raising,  and  for 
the  purpose  of  building  storage  reservoirs  for  the  collection 
and  storage  of  water  for  the  purposes  before  mentioned.  All 
such  corporations  shall  have  full  power  and  authority  to 
make  contracts  for  the  sale  of  permanent  water  rights,  and 
to  have  the  same  secured  by  liens  on  the  land  or  otherwise, 
and  to  lease,  rent  or  otherwise  dispose  of  the  water  control- 
led by  such  corporation  for  such  time  as  may  be  agreed  upon, 
and,  in  addition  to  the  lien  on  the  crops  hereinafter  provid- 
ed for,  the  lease  or  rental  contract  may  be  secured  by  a  lien 
on  the  land,  or  otherwise.  All  persons  who  own  or  hold  a 
possessory  right  or  title  to  land  adjoining  or  contiguous  to 
any  canal,  ditch,  flume  or  lateral  constructed  and  maintain- 
ed under  the  provisions  of  this  chapter,  and  who  shall  have 
secured  a  right  to  the  use  of  water  in  said  canal,  ditch,  flume, 
lateral,  reservoir,  dam  or  lake,  shall  be  entitled  to  be  sup- 
plied from  such  canal,  ditch,  flume,  lateral,  dam  or  lake 
with  water  for  irrigation  of  such  land,  and  for  mining,  mill- 
ing and  stock  raising,  in  accordance  with  the  terms  of  his  or 
their  contract:  provided,  that  if  the  person,  association  or 
corporation  owning  or  controlling  such  water,  and  the  per- 
son who  owns  or  holds  a  possessory  right  or  title  to  land  ad- 


APPENDIX.  443 

joining  or  contiguous  to  any  canal,  ditch,  flume  or  lateral 
constructed  and  maintained  under  the  provisions  of  this 
chapter,  fail  to  agree  upon  a  price  for  a  permanent  water 
right,  or  for  the  use  or  rental  of  the  necessary  water  to  irri- 
gate the  land  of  such  person,  and  for  mining,  milling  and 
stock  raising,  such  person,  firm,  association  or  corporation 
shall,  nevertheless,  if  such  person,  firm,  association  or  cor- 
poration has  or  controls  any  water  not  contracted  to  others, 
furnish  the  necessary  water  to  such  person  to  irrigate  his 
lands,  and  for  mining,  milling  and  stock  raising,  at  such 
prices  as  may  be  reasonable  and  just :  provided,  further,  that 
in  case  of  shortage  of  water  from  drought,  accident  or  other 
cause,  the  water  to  be  distributed  shall  be  divided  among 
all  consumers  pro  rata,  according  to  the  amount  he  or  they 
may  be  entitled  to,  to  the  end  that  all  shall  suffer  alike,  and 
preference  be  given  to  none.  The  sale  of  the  permanent 
water  right  shall  be  an  easement  to  the  land,  and  pass  with  the 
title  thereof,  and  the  owner  thereof  shall  be  entitled  to  the  use 
of  the  water  upon  the  terms  provided  in  his  or  their  contract 
with  such  person  or  corporation,  or,  in  case  no  contract  is 
entered  into,  then  at  just  and  reasonable  prices.  Any  in- 
strument of  writing  providing  a  permanent  water  right  shall 
be  admitted  to  record  in  the  same  manner  as  other  instru- 
ments relating  to  the  conveyance  of  land. 

See,  also,  as  to  irrigation  corporations,  article  642,  §  23, 
and  article  704. 

[Acquisition  of  Right  of  Way,  etc.] 

Art.  3126.  By  this  article,  a  right  of  way  not  exceeding 
100  feet  in  width  is  granted  to  corporations  formed  under 
the  provisions  of  this  chapter  over  public  lands,  and  such 
corporations  are  also  given  the  right  to  acquire,  by  contract 


444  LAW  OF  IRRIGATION. 

or  by  condemnation,  a  right  of  way  over  private  land,  and 
to  condemn  the  water  rights  of  riparian  owners. 

[Right  of  Way  Across  Public  Highways,  etcJ 

Art.  3128.  All  said  persons,  corporations  and  associa- 
tions shall  have  the  right  to  run  along  or  across  all  roads 
and  highways  necessary  in  the  construction  of  their  work, 
and  shall  at  all  such  crossings  construct  and  maintain  neces- 
sary bridges  for  the  accommodation  of  the  public,  and  shall 
not  impair  the  usefulness  of  such  road  or  highway:  provid- 
ed, that  if  any  public  road  or  highway  or  public  bridges 
should  be  upon  the  ground  necessary  for  the  dam  site,  reser- 
voir or  lake,  it  shall  be  the  duty  of  the  commissioners'  court 
to  change  said  road,  and  to  remove  such  bridges,  that  the 
same  may  not  interfere  with  the  construction  of  the  .pro- 
posed dam,  reservoir  or  lake:  provided,  further,  that  the 
expense  of  making  such  change  shall  be  paid  by  the  person, 
firm  or  corporation  owning  such  dam  site,  reservoir  or  lake. 

[Power  to  Acquire  Land,  Borrow  Money,  Issue  Bonds,  etc.! 

Art.  3131.  Any  corporation  organized  under  the  pro- 
visions of  the  general  laws  of  this  state,  or  the  provisions  of 
this  chapter,  for  the  purpose  of  irrigation,  shall  have  the 
power  to  acquire  lands  -by  voluntary  donation  or  purchase, 
or  in  payment  of  stock  or  water  rights,  and  to  hold  and  dis- 
pose of  all  such  land  and  other  property,  and  to  borrow 
money  for  the  construction,  maintenance  and  operation  of 
its  canals,  ditches,  flumes,  feeders,  reservoirs,  dams,  lakes 
and  wells,  and  may  issue  bonds  and  mortgage  its  corporate 
and  other  property  and  franchises  to  secure  the  payment  of 
any  debts  contracted  for  the  same:  provided,  no  corporation 
shall  issue  stock  or  bonds  except  for  money  paid,  labor  done, 


APPENDIX.  445 

or  property  actually  received,  and  all  fictitious  increase  of 
stock  or  indebtedness  shall  be  void:  and  provided,  further, 
all  lands  acquired  by  said  corporation,  except  such  as  are 
used  for  the  construction,  maintenance  and  operation  of 
said  canals,  ditches,  laterals,  feeders,  reservoirs,  dams,  lakes 
and  wells  shall  be  alienated  within  fifteen  years  from  the 
date  of  acquiring  said  lands,  or  be  subject  to  judicial  for- 
feiture. 

[Lien  for  Water  Furnished J 

Art.  3130.  This  article  gives  to  persons,  corporations,  or 
associations  of  persons  who  lease  or  rent  the  water  from  their 
ditches,  etc.,  to  the  owners  of  land  subject  to  irrigation  there- 
from, a  preference  lien,  superior  to  every  other  lien,  upon 
the  crop  or  crops  raised  upon  the  land  irrigated  under  such 
lease  or  contract. 

MISCELLANEOUS  PROVISIONS. 
[Surplus  Water  to  be  Returned.] 

Art.  3127.  All  surplus  water  of  a  running  stream  not 
used  or  disposed  of  as  provided  in  the  preceding  articles  shall 
be  conducted  back  to  the  stream  from  which  it  was  taken 
through  a  ditch  or  canal  constructed  under  the  provisions 
of  this  chapter,  or  through  a  natural  channel  leading  back  to 
the  stream. 

[Trespass  by  Live  Stock — Fences.] 

Art.  3129.  Unless  such  person,  association  of  persons  or 
corporation  shall  fence  their  said  ditch,  canal,  reservoir, 
dam  or  lake,  and  keep  the  same  securely  fenced,  then  there 
shall  accrue  in  their  favor  no  cause  of  action  against  owners 
of  live  stock  for  any  trespass  thereon. 


446  LAW  OF  IRRIGATION. 

[Offenses.] 

As  to  offenses  such  as  injuring  irrigating  ditches,  unlaw- 
fully taking  water,  etc.,  see  Pen.  Code,  arts.  803a,  803b,  and 
Laws  1899,  p.  301. 


UTAH. 
CONSTITUTIONAL  PROVISIONS. 

[Existing  Water  Rights  Confirmed.] 

Art.  17.  All  existing  rights  to  the  use  of  any  of  the  wa- 
ters in  this  state  for  any  useful  or  beneficial  purpose  are 
hereby  recognized  and  confirmed. 

[Taxation  of  Ditches J 

Art.  13,  §  3.  *  *  *  Ditches,  canals  and  flumes  owned 
and  used  by  individuals  or  corporations  for  irrigating  lands 
owned  by  such  individuals  or  corporations,  or  the  individ- 
ual members  thereof,  shall  not  be  separately  taxed  so  long 
as  they  shall  be  owned  and  used  exclusively  for  such  pur- 
pose. 

STATUTORY    PROVISIONS. 

[Keferences  to  Eev.  St.  1898.] 
THE  RIGHT  OF  APPROPRIATION. 

[Water  may  be  Appropriated.] 

§  1261.  The  rights  to  the  use  of  any  of  the  unappro- 
priated waters  of  the  state  may  be  acquired  by  appropria- 
tion. 

[Appropriation  must  be  for  Useful  Purpose.] 

§  1262.  The  appropriation  must  be  for  some  useful  or 
beneficial  purpose,  and  when  the  appropriator  or  his  sue- 


448  LAW  OF  IRRIGATION. 

cessor  in  interest  abandons  or  ceases  to  use  the  water  for  a 
period  of  seven  years,  the  right  ceases;  but  questions  of 
abandonment  shall  be  questions  of  fact,  and  shall  be  deter- 
mined as  are  other  questions  of  fact. 

[Place  of  Diversion  and  Use  of  Water  may  be  Changed.] 

§  1263.  This  section  is  substantially  the  same  as  Civ. 
Code  Mont.  §  1882. 

[Use  of  Natural  Stream  as  Conduit.  ] 

§  1264.  This  section  is  substantially  the  same  as  Civ. 
Code  Mont.  §  1883. 

[Equality  of  Rights  Among  AppropriatorsJ 

§  1265.  All  persons,  corporations  or  associations  that 
have  appropriated  any  of  the  waters  of  the  state  for  agri- 
cultural or  other  useful  or  beneficial  purposes,  or  that  may 
hereafter  appropriate  any  of  the  waters  of  this  state  for  ag- 
ricultural or  other  useful  or  beneficial  purposes,  from  any 
streams,  springs,  or  lakes  within  the  state,  until  all  of  the 
said  waters  are  or  shall  have  been  diverted  from  the  streams, 
springs,  or  lakes  when  at  their  average  flow  at  low-water 
mark,  shall  be  deemed  to  be  equal  in  rights  to  the  said  wa- 
ters, according  to  their  vested  rights. 

[Secondary  Rights.] 

§  1266.  A  secondary  right  to  the  use  of  water  for  any 
useful  or  beneficial  purposes  may  be  appropriated  subject 
to  the  perfect  and  complete  use  of  all  prior  rights,  to  the  ex- 
tent of  and  reasonable  necessity  for  such  use  thereof,  in  the 
manner  hereinafter  prescribed,  under  any  of  the  following 
•circumstances :  1.  Whenever  the  whole  of  the  waters  of  any 


APPENDIX.  449 

natural  stream,  watercourse,  lake,  spring  or  other  natural 
source  of  supply  has  been  taken,  diverted  and  used  by  prior 
appropriators  for  a  part  or  parts  of  each  year  only,  and 
other  persons  shall  subsequently  appropriate  any  part,  or 
the  whole,  of  such  water  during  any  other  part  of  such  year, 
such  persons  shall  be  deemed  to  have  acquired  a  secondary 
right.  2.  Whenever,  at  the  time  of  an  unusual  increase  of 
water  exceeding  seven  years'  average  flow  of  such  water,  at 
the  same  season  of  each  year,  all  the  water  of  such  average 
flow  then  being  used  by  prior  appropriators,  and  other  per- 
sons shall  appropriate  and  use  such  increase  of  water,  such 
persons  shall  be  deemed  to  have  acquired  a  secondary  right. 

PROCEDURE  OF  APPROPRIATION. 

[Notice  of  Appropriation.] 

§  1268.  Any  person  hereafter  desiring  to  appropriate 
water  must  post  a  notice  in  writing  in  two  conspicuous 
places, — one  copy  at  the  nearest  postoffice  to  the  point  of 
intended  diversion,  one  copy  at  the  point  of  intended  diver- 
sion, stating  therein  [the  contents  prescribed  are  the  same 
as  in  Civ.  Code  Mont.  §  1886,  except  that  the  water  claim- 
ed shall  be  stated  in  cubic  feet  per  second]. 

[Record  of  Notice.] 

§  1269.  This  section  is  a  copy  of  the  same  provision 
of  Civ.  Code  Mont.  §  1886. 

[Construction  of  Works,  etc.] 

§§  1270,  1271.  Copied  from  Civ.  Code  Mont.  §§  1887, 
1888,  respectively. 


450  LAW  OF  IRRIGATION. 

[Records  of  Rights.] 

§§  1272,  1273.  Copies  from  Civ.  Code  Mont.  §§  1889, 
1890,  respectively,  except  that  the  declaration  must  be  filed 
within  a  year  instead  of  six  months,  as  in  Montana. 

§  1275.  The  county  recorder  must  keep  a  well-bound 
book,  in  which  he  must  record  the  notices  and  declarations 
provided  for  in  this  title. 

RIGHT  OF  WAY  FOR  DITCHKS,  ETC. 
[Right  of  Way  Granted.] 

§  1277.  Any  person  or  corporation  shall  have  the  right  of 
way  across  and  upon  public,  private  and  corporate  lands,  or 
other  right  of  way,  for  the  construction,  maintenance,  repair 
and  use  of  all  necessary  reservoirs,  dams,  water  gates,  canals, 
ditches,  flumes,  tunnels,  or  other  means  of  securing,  storing 
and  conveying  water  for  irrigation,  or  for  any  necessary  pub- 
lic use,  or  for  drainage,  upon  payment  of  just  compensation 
therefor,  but  such  right  of  way  shall  in  all  cases  be  exercised 
in  a  manner  not  to  unnecessarily  impair  the  practical  use  of 
any  other  right  of  way,  highway,  or  public  or  private  road, 
nor  to  unnecessarily  injure  any  public  or  private  property. 
Such  right  of  way  may  be  acquired  in  the  manner  provided 
by  law  ±or  the  taking  of  private  property  for  public  use. 

[Enlargement  of  Existing  Canal.] 

§  1278.  When  any  person  or  corporation  desires  to  con- 
vey water  for  irrigation,  or  for  any  other  beneficial  purpose, 
and  there  is  a  canal  or  ditch  already  constructed  that  can  be 
enlarged  to  convey  the  required  quantity  of  water,  then  such 
person  or  corporation,  or  the  owner  or  owners  of  the  lands 


APPENDIX.  451 

through  which  a  new  canal  or  ditch  would  have  to  be  con- 
structed to  convey  the  quantity  of  water  necessary,  shall 
have  the  right  to  enlarge  said  canal  or  ditch  already  con- 
structed by  compensating  the  owner  of  the  canal  or  ditch  to 
be  enlarged  for  the  damage,  if  any,  caused  by  said  enlarge- 
ment: provided,  that  said  enlargement  is  to  be  done  at  any 
time  from  the  first  day  of  October  to  the  first  day  of  March, 
or  at  any  other  time  that  may  be  agreed  upon  with  the  owner 
of  said  canal  or  ditch. 

DUTIES  OF  APPROPRIATORS. 

[Surplus  Water  to  be  Returned  Within  Twenty-four  Hours  After 
Demand. 

§  1267.  This  section  is  substantially  copied  from  the 
proviso  of  Civ.  Code  Mont.  §  1884,  with  the  exception  tha* 
the  surplus  water  shall  be  returned  within  twenty-four 
hours  instead  of  five  days  after  demand,  and  the  delin- 
quent shall  be  liable  for  damage  sustained,  instead  of  a  stated 
sum  of  $25  per  day. 

[Duty  to  Protect  Highways  by  Bridges,  etc.] 

§  1279.  This  section  is  substantially  the  same  as  Civ. 
Code  Mont.  §  1895. 

[Liability  of  Co-Owners  of  Ditches  for  Repairs,  etcJ 

§  1280.  When  two  or  more  persons,  companies  or  cor- 
porations are  associated  by  agreement  or  otherwise  in  the 
use  of  any  canal,  ditch,  flume  or  other  watercourse,  or  are 
using  for  the  irrigation  of  land  or  for  other  purposes  any 
canal,  ditch,  flume  or  other  watercourse,  to  the  construction 
of  which  they  or  their  grantors  have  contributed,  each  of 
them  shall  be  liable  to  the  other  for  the  reasonable  expense  of 


452  LAW  OF  IRRIGATION. 

maintaining,  repairing,  distributing  and  controlling  the 
same  in  proportion  to  the  share  in  the  use  or  ownership  of 
the  water  to  which  he  is  entitled.  If  any  person,  company 
or  corporation  refuse  or  neglect  to  pay  his  proportion  of  such 
expenses  after  five  days'  notice  in  writing,  demanding  such 
payment,  he  shall  be  liable  therefor  in  an  action  for  contri- 
bution. 

O  FFENSES. 

[Unlawfully  Taking  or  Using  Water.] 

§  1285.  Any  person  who  shall  take  or  use  more  water 
than  he  is  entitled  to  or  has  been  allotted  to  him  by  a  proper 
officer  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be 
liable  in  damages  to  any  corporation,  company  or  individual 
injured  by  such  unlawful  taking. 

[Obstructing  Right  of  Way.l 

§  1286.  Whenever  any  corporation,  company  or  indi- 
vidual has  the  right  of  way  for  canals  or  ditches,  it  shall  be 
unlawful  for  any  person  to  place  or  maintain  in  place  any 
obstruction,  by  fence  or  otherwise,  along  or  across  such  canals 
or  ditches  without  providing  gates  sufficient  for  the  passage 
of  the  owners  or  agents  of  such  canals  or  ditches.  Any  per- 
son violating  the  provisions  of  this  section  shall  be  guilty  of 
a  misdemeanor. 

THE  ADJUDICATION  OF  PRIORITIES. 
§  1274.     This  section  is  set  out  in  the  text  [section  107.] 

MISCELLANEOUS  PROVISIONS. 

[Keferences  to  Rev.  St.  1898.] 
[Conveyance  of  Water  Rights.] 

§  1281.     A  right  to  the  use  of  water  appurtenant  to  land 


APPENDIX.  453 

shall  pass  to  the  grantee  of  such  land,  and  in  cases  where 
such  right  has  been  exercised  in  irrigating  different  parcels 
of  land  at  different  times,  such  right  shall  pass  to  the  grantee 
of  any  parcel  of  land  on  which  such  right  was  exercised  next 
preceding  the  time  of  the  execution  of  any  conveyance  there- 
of;  subject,  however,  in  all  cases,  to  payment  by  the  grantee 
of  any  such  conveyance,  of  all  amounts  unpaid  on  any  as- 
sessment then  due  upon  any  such  right:  provided,  that  any 
such  right  to  the  use  of  water,  or  any  part  thereof,  may  be 
reserved  by  the  grantor  in  any  such  conveyance,  or  may  be 
treated  as  personal  property,  and  separately  conveyed. 

[Unit  of  Measurement — Second-Foot.  ] 

§  1282.  The  standard  unit  of  measurement  for  flowing 
water  shall  be  the  continuous  flow  of  one  cubic  foot  per  sec- 
ond of  time,  and  shall  be  known  as  the  "second-foot." 

[Same — Acre  FootJ 

§  1283.  The  volume  of  water  required  to  cover  one 
acre  to  a  depth  of  one  foot  shall  be  known  as  the  "acre-foot/' 
and  is  equivalent  to  forty-three  thousand  five  hundred  and 
sixty  cubic  feet. 

[Apportionment  of  Water.] 

§  1284.  Water  used  for  beneficial  purposes  may  also  be 
apportioned  among  the  legal  users  by  fractional  parts  of  the 
whole  source  of  supply,  or  by  fractional  parts  with  a  limi- 
tation as  to  periods  of  time  when  used. 


WASHINGTON. 

CONSTITUTIONAL   PROVISIONS. 

[Use  of  Water  for  Irrigation,  etc.,  Public  TJseJ 

Art.  21.  The  use  of  the  waters  of  this  state  for  irrigation, 
mining  and  manufacturing  purposes  shall  be  deemed  a  pub- 
lic use. 

STATUTORY    ENACTMENTS. 

[References  to  Ballinger's  Codes  1897.] 
THE  RIGHT  OF  APPROPRIATION. 

[Water  may  be  Appropriated.] 

§  4091.  The  right  to  the  use  of  water  in  any  lake,  pond 
or  flowing  spring  in  this  state,  or  the  right  to  the  use  of  wa- 
ter flowing  in  any  river,  stream  or  ravine  of  this  state,  for 
irrigation,  mining  or  manufacturing  purposes,  or  for  sup- 
plying cities,  towns  or  villages  with  water,  or  for  waterworks, 
may  be  acquired  by  appropriation,  and,  as  between  appro- 
priations, the  first  in  time  is  the  first  in  right. 

[Same — Use  of  Water  a  Public  Use.l 

§  4100.  Any  person,  corporation  or  association  of  per- 
sons is,  entitled  to  take  from  any  of  the  natural  streams  or 
lakes  in  this  state  water  for  the  purposes  of  irrigation,  not 
heretofore  appropriated,  or  subject  to  rights  existing  at  the 
time  of  the  adoption  of  the  constitution  of  this  state,  subject 
to  the  conditions  and  regulations  imposed  by  law:  provided, 


APPENDIX.  455 

that  the  use  of  water  at  all  times  shall  be  deemed  a  public 
use,  and  subject  to  condemnation,  as  may  from  time  to  time 
be  provided  for  by  the  legislature  of  this  state.  [As  amend- 
ed, Laws  1899,  p.  261,  §  1.] 

[Eight  of  Eiparian  Owners  to  Use  Water.] 

§  4101.  All  persons  who  claim,  own  or  hold  a  possessory 
right  or  title  to  any  land,  or  parcel  of  land,  or  mining  claim, 
within  the  boundary  of  the  state  of  Washington,  when  such 
lands  or  mining  claim,  or  any  part  of  the  same,  are  on  the 
banks  pf  any  natural  stream  of  water,  shall  be  entitled  to  the 
use  of  any  water  of  said  stream  not  otherwise  appropriated, 
for  the  purposes  of  mining  and  irrigation,  to  the  full  extent 
of  the  soil  for  agricultural  purposes.  [As  amended,  Laws 
1899,  p.  261,  §  2.] 

[Right  of  Nonriparian  Owners  to  Use  Water J 

§  4106.  Any  person  who  owns  or  has  the  possessory 
right  to  lands  in  the  vicinity  of  any  natural  stream  or  lake, 
not  abutting  such  stream  or  lake,  may  take  water  from  such 
stream  or  lake  if  there  be  any  surplus  or  unappropriated  wa- 
ter in  such  stream  or  lake. 

[When  Appropriator's  Right  Attaches.] 

§  4110.  Any  person  desiring  to  dig  a  ditch  or  canal  from 
any  natural  stream  or  lake  of  water  in  this  state,  for  the  pur- 
pose of  carrying  water  to  irrigate  lands,  shall  be  entitled  to 
take  water  from  said  stream  or  lake  not  appropriated  at  the 
time  that  the  construction  of  said  ditch  is  begun:  provided, 
that  such  person  shall  not  keep  or  store,  by  virtue  of  the  said 
ditch,  any  more  water  than  is  used  for  the  purposes  of  irriga- 
tion. 


456  LAW  OP  IRRIGATION. 

[Appropriation  of  Waste  and  Seepage  Water.! 

§  4114.  This  section  is  substantially  the  same  as  Mills7 
Ann.  St.  Colo.  §  2269. 

§  4115.  All  persons  who  shall  have  enjoyed  the  use  of 
the  water  in  any  natural  stream  or  lake  for  the  irrigation  of 
any  land  by  the  natural  overflow  or  seepage  of  the  water  of 
such  stream  or  lake  shall,  in  case  of  diminution  of  the  water 
supplied  by  such  stream  or  lake,  from  any  cause,  so  as  to  pre- 
vent such  irrigation  therefrom  in  as  ample  a  manner  as  for- 
merly, have  the  right  to  construct  a  ditch  for  the  irrigation 
of  such  land,  and  to  take  water  from  such  stream  or  lake 
therefor;  and  his  right  to  water  through  such  ditch  shall 
have  the  same  priority  as  though  such  ditch  had  been  con- 
structed at  the  time  he  occupied  and  used  such  land. 

PROCEDURE  OF  APPROPRIATION. 
[ Notice  of  Appropriation  to  be  Posted.] 

§  4092.  Any  person,  persons,  corporation  or  associa- 
tion desiring  to  appropriate  water  must  post  a  notice  in  writ- 
ing in  a  conspicuous  place  at  the  point  of  intended  storage  or 
diversion,  stating  therein  (1)  that  such  appropriator  claims 
the  water  there  lying,  being  or  flowing  to  the  extent  of  one 
cubic  foot  of  water  per  second  of  time,  or  some  multiple  or 
some  fractional  portion  thereof;  (2)  the  purpose  for  which 
said  water  is  appropriated,  and  the  place  or  places,  as  near 
as  may  be,  of  intended  use;  (3)  the  means  by  which  it  is  in- 
tended to  store  or  divert  the  same ;  (4)  a  copy  of  the  notice 
must,  within  ten  days  after  it  is  posted,  be  filed  for  record 
in  the  office  of  the  county  auditor  of  the  county  in  which  it 
is  posted. 


APPENDIX.  457 

[Construction  of  Works.! 

§  4093.  If  said  use  is  by  storage,  the  appropriator  must, 
within  three  months  after  the  notice  is  posted,  commence  the 
construction  of  the  works  by  which  it  is  intended  to  store  the 
same.  If  said  use  is  by  diversion,  the  appropriator  must, 
within  six  months  after  the  notice  is  posted,  commence  the 
excavation  or  construction  of  the  works  by  which  it  is  in- 
tended to  divert  the  same;  it  being  herein  expressly  provid- 
ed that  such  works  must  be  diligently  and  continuously  pros- 
ecuted to  completion,  unless  temporarily  interrupted  by  the 
elements. 

[Right  Relates  Back — Forfeiture  by  Non-ComplianceJ 

§  4094.  By  a  strict  compliance  with  the  above  rules,  the 
appropriator's  right  to  the  use  of  the  water  actually  stored 
or  diverted  relates  back  to  the  time  the  notice  was  posted; 
but  a  failure  to  comply  therewith  deprives  the  appropriator 
of  the  right  to  the  use  of  the  water  as  against  a  subsequent 
appropriator,  who  faithfully  complies  with  the  same. 

«  » 
[Rules  Made  Applicable  to  Existing  Appropriations.] 

§  4095.  Persons  who  have  heretofore  appropriated  wa- 
ter, and  have  not  constructed  works,  or  have  not  diverted  the 
water  and  applied  it  to  some  purpose,  as  herein  stated,  must, 
within  thirty  days  after  this  act  takes  effect,  proceed  as  in 
this  act  provided,  or  their  right  ceases. 

[Transfer  of  Right — Notices  to  be  Recorded.] 

§  4096.  The  right  to  the  use  of  water  acquired  by  ap- 
propriation may  be  transferred,  like  other  property,  by  deed. 
The  county  auditor  of  each  county  in  this  state  must  keep  a 


458  LAW  OF  IRRIGATION. 

book  in  which  he  must  record  the  notices  provided  for  in  this 
chapter. 

[Former  Appropriations  Recognized.] 

§  4097.  Appropriations  of  water  heretofore  made  for 
any  of  the  purposes  in  this  chapter  provided  are  hereby  rec- 
ognized, but  this  chapter  shall  not  be  construed  to  interfere 
with  vested  rights. 

[Application  of  Sections  4092-4095  Limited. J 

§  4098.  The  provisions  of  sections  4092,  -4093,  4094, 
and  4095  shall  only  apply  to  appropriations  of  water  made 
for  irrigation,  and  shall  not  apply  to  appropriations  for  irri- 
gation made  prior  to  the  passage  of  this  act,  nor  to  water 
rights  existing  at  the  date  of  the  passage  of  this  act:  pro- 
vided, that  in  appropriations  for  irrigation,  begun  but  not 
completed  prior  to  the  passage  of  this  act,  the  appropriator 
shall  comply  with  the  provisions  of  sections  4092,  4093, 
4094  and  4095 :  and  further  provided,  that  said  sections 
shall  not  interfere  with  the  vested  rights  of  any  irrigation 
district  now  organized. 

[Use  may  be  Changed.] 

§  4099.  Water  appropriated  for  any  of  the  purposes  in 
this  chapter  mentioned  may  be  changed  to  any  other  purpose 
herein  specified,  or  to  any  other  beneficial  use,  and  the  right 
to  such  use  shall  relate  back  to  the  original  appropriation. 

[Ditch  Owner  must  File  Map  and  Statement.] 

§  4041.  Every  person,  association  or  corporation  here- 
after constructing  or  enlarging  any  ditch  or  canal,  and  tak- 
ing water  directly  from  any  natural  stream  or  lake,  and  of 


APPENDIX.  459 

the  carrying  capacity  of  more  than  one  cubic  foot  of  water 
per  second  of  time,  as  so  constructed  or  enlarged,  shall,  with- 
in ninety  days  after  the  construction  or  enlargement,  file  in 
the  office  of  the  county  clerk  [of  the  county]  in  which  the 
headgate  of  such  ditch  may  be  situated,  a  map  showing  the 
point  of  location  of  such  headgate,  the  route  of  such  ditch  or 
canal,  and  the  legal  subdivisions  of  the  lands  upon  which 
such  structures  are  built  or  to  be  built ;  if  on  surveyed  lands, 
the  names  of  the  owners  of  such  lands,  as  far  as  the  same 
are  of  record  in  the  office  of  the  county  clerk  of  the  county  in 
which  they  are  situated,  such  courses,  distances  and  corners, 
by  reference  to  legal  subdivisions,  if  on  surveyed  lands,  or  to 
natural  objects,  if  on  unsurveyed  lands,  as  will  clearly  des- 
ignate the  location  of  such  structures.  Upon  or  attached  to 
such  map  shall  be  a  statement  showing  (1)  the  point  of  lo- 
cation of  the  headgate  above  mentioned;  (2)  the  depth, 
width  and  grade  of  such  ditch  or  canal;  (3)  the  carrying 
capacity  of  such  ditch  or  canal  in  cubic  feet  per  second  of 
time ;  (4)  the  time  of  commencement  of  work  on  such  struc- 
tures, which  time  may  be  dated  from  the  commencement  of 
the  surveys  therefor.  In  case  of  construction  or  enlarge- 
ment, such  statement  shall  also  show  the  matters  required  in 
items  second,  third  and  fourth  above,  as  to  the  enlargement, 
and  state  the  increased  capacity  arising  from  such  enlarge- 
ment. If  such  statement  be  filed  within  the  time  above  lim- 
ited, priority  of  right  of  way  and  water  accordingly  shall 
date  from  the  day  named  as  the  day  of  commencing  work; 
otherwise,  only  from  the  date  of  the  filing  of  the  same :  pro- 
vided, that  nothing  herein  contained  shall  be  taken  to  dis- 
pense with  the  necessity  of  due  diligence  in  the  prosecution 
of  such  structures  on  the  part  of  the  projectors  of  the  same. 
Such  statement  shall  be  signed  by  the  person,  association  or 


460  LAW  OF  IRRIGATION. 

corporation  on  whose  behalf  it  is  made,  and  the  truth  of  the 
matters  shown  in  such  map,  and  statement,  shall  he  sworn  to 
by  some  person  in  whose  personal  knowledge  the  truth  of  the 
same  shall  lie. 

§  4142.  This  chapter  shall  apply  to  and  affect  only 
ditches  or  canals  used  for  carrying  water  for  the  purpose  of 
irrigation,  and  for  no  other  purpose  whatever:  provided,  that 
all  rights  shall  be  forfeited  under  the  provisions  of  this  chap- 
ter unless  due  diligence  is  used  in  such  construction  or  en- 
largement. 

RIGHT  OF  WAY  FOR  DITCHES,  ETC. 

The  right  of  way  for  ditches,  etc.,  is  granted,  and  the 
right  of  condemnation  regulated,  by  sections  4102-4104,  and 
4138,  4139,  copied  respectively  from  Mills'  Ann.  St.  Colo. 
§§  2257,  2258,  2260-2262.  Sections  4102-4104  seem  to  be 
superseded  by  Laws  1899,  p.  261,  §§  3-5.  Besides  these 
provisions,  there  are  other  sections  as  follows : 

§  4133.  All  persons,  associations  and  corporations  en- 
titled to  the  use  of  water  under  the  provisions  of  this  chap- 
ter, in  cases  where  the  right  of  way  over  intervening  lands  is 
necessary  to  the  use  of  such  water,  may  condemn  the  right 
of  way  for  any  such  ditch  or  ditches  as  hereinafter  provided. 

See,  also,  sections  4107,  4117  and  4136,  granting  a  right 
of  way  in  special  cases.  As  to  condemnation  proceedings, 
see  sections  3134,  4135.  [Laws  1899,  p.  261,  §§6,  7.] 

The  right  to  extend  the  head  of  a  ditch  up  stream  is  grant- 
ed by  section  4140,  copied  from  Mills'  Ann.  St.  Colo.  §  2264. 

I  Use  of  Natural  Stream  as  Channel.] 

§  4112.  This  section  authorizes  persons  having  a  right 
to  water  to  take  the  same  along  any  natural  stream  or  lake, 


APPENDIX.  461 

but  not  so  as  to  raise  the  waters  thereof  above  ordinary  high- 
water  mark,  due  allowance  being  made  for  evaporation  and 
seepage,  the  amount  of  seepage  to  be  determined  by  the  com- 
missioners of  irrigation,  or,  if  there  be  none,  by  the  county 
commissioners. 

[Use  of  Pumps,  etcJ 

§  4113.  This  section  authorizes  the  use  of  wheels,  steam 
pumps  or  other  machines  to  raise  water  to  the  required  level, 
and  the  condemnation  of  a  right  of  way  therefor. 

CONDEMNATION  OF  WATER  RIGHTS. 

§§  4143-4153.  Any  person,  association  or  corporation 
desiring  to  condemn  the  riparian  rights  of  persons  in  any 
natural  stream  or  lake  in  this  state  may  do  so.  The  statute 
prescribes  the  procedure  for  condemnation  in  such  case, 
which  is  substantially  the  same  as  for  a  right  of  way. 

§  4156.  The  right  herein  given  to  condemn. the  use  of 
water  shall  not  extend  any  further  than  to  the  riparian  rights 
of  persons  to  the  natural  flow  of  water  through  lands  upon 
or  abutting  said  streams  or  lakes,  as  the  same  exists  at  com- 
mon law,  and  is  not  intended  in  any  manner  to  allow  water 
to  be  taken  from  any  person  that  is  used  by  said  person  him- 
self for  irrigation,  or  that  is  needed  for  that  purpose  by  any 
such  person. 

PUBLIC  CONTROL  OF  IRRIGATION. 

Each  county  of  the  state  is  constituted  an  irrigation  dis- 
trict, and  for  each  district  a  water  commissioner  may  be  ap- 
pointed by  the  county  commissioners.  The  duties  of  the 
water  commissioner  are  substantially  the  same  as  those  of 
such  officers  in  Colorado,  the  statutes  of  which  state  on  the 


462  LAW  OF  IRRIGATION. 

subject  having  been  adopted  with  little  change.  [See  the 
text,  sections  121,  123.]  These  provisions  constitute  seq- 
tions  4125-4127,  4129-4132. 

REGULATION   OF   USE  OF   WATER    BY    COMMISSIONKKS    APPOINTED 
BY   SUPERIOR  COURT. 

[Apportionment  of  Water  in  Time  of  Scarcity.] 

§  4108.  In  case,  at  any  time,  the  supply  of  water  in  any 
natural  stream  or  lake  is  below  the  usual  supply  of  water  in 
said  stream  or  lake,  upon  application  of  any  person  interest- 
ed the  superior  court  of  any  county  through  which  said 
stream  or  lake  may  flow  shall  appoint  three  commissioners 
whose  duty  it  shall  be  to  immediately  go  upon  said  stream 
or  lake,  and  apportion  the  water  running  in  said  stream  or 
lake  to  the  different  persons  entitled  to  use  the  said  stream  or 
lake,  as  may  seem  to  them  equitable  and  proper,  having  due 
regard  for  the  vested  rights  of  the  persons  so  entitled  to  use 
water  from  said  stream  or  lake :  provided,  that  said  commis- 
sioners shall  apportion  to  all  persons  upon  such  stream  or 
lake  for  domestic  purposes  "before  any  water  is  allowed  to  be 
taken  from  said  stream  or  lake  for  the  purposes  of  irriga- 
tion: and  provided  that,  in  case,  of  unusual  drought,  said 
commissioners  shall  endeavor  to  apportion  the  water  to  the 
persons  entitled  to  use  the  water  from  said  stream  or  lake,  so 
that  the  orchards  and  perennial  plants  upon  farms  of  such 
person  so  entitled  to  use  such  water  shall  be  supplied  with 
sufficient  water  to  keep  them  alive. 

[Rights  to  be  Based  Upon  Usual  Flow  of  Water.] 

§  4109.  The  vested  rights  to  water,  whenever  called  into 
question  in  any  court,  and  whenever  the  same  are  required  to 
be  determined  by  any  commissioners  or  commissioner,  under 


APPENDIX.  463 

the  provision  of  the  laws  of  this  state,  shall  be  based  and  de- 
termined upon  the  usual  volume  of  water  annually  flowing 
in  the  natural  streams  and  lakes  of  the  state;  and  in  the 
event  of  any  of  the  said  streams  or  lakes  being  unusually 
low,  the  rights  of  all  persons  to  water  out  of  the  said  stream 
or  lake  shall  be  reduced  in  accordance  with  the  reduction  of 
the  water  in  said  stream  or  lake  below  the  usual  stage  of  wa- 
ter in  said  stream  or  lake  at  the  time  of  year  when  the  par- 
ticular matter  is  brought  before  said  commissioners,  commis- 
sioner or  court. 

[Regulation  of  Flow  of  Water  in  Ditch.  1 

§  4111.  Upon  the  application  of  any  person  interested, 
the  superior  court  of  any  county  in  which  any  ditch,  or  the 
part  of  any  ditch,  constructed  in  accordance  with  the  preced- 
ing section  [section  4110]  is  situated,  may  appoint  three 
commissioners  to  inquire  and  determine  whether  or  not 
more  water  is  diverted  by  means  of  said  ditch  than  is 
used,  or  than  is  to  be  properly  used,  during  any  season,  for 
the  purposes  of  irrigation,  and  the  descision  of  said  commis- 
sioners shall  be  final,  and  they  shall  have  power  to  order  and 
require  the  person  having  charge  of  said  ditch  to  turn  off 
such  part  of  the  water  in  said  ditch  as  they  may  deem  to  be 
unnecessary  for  the  use  of  the  land  being  cultivated  and  to  be 
cultivated  during  such  season  by  water  taken  from  said 
ditch;  and  any  failure  upon  the  part  of  any  person  control- 
ling said  ditch  to  comply  with  the  order  of  said  commissioners 
aforesaid  shall  be  punished  as  a  contempt  of  the  superior 
court  of  the  county  appointing  said  commissioners ;  and  all 
persons  constructing  ditches  and  taking  water  from  the  nat- 
ural streams  or  lakes  of  this  state,  as  provided  for  herein, 
shall  take  the  same  subject  to  all  the  conditions,  restrictions, 


464  LAW  OF  IRRIGATION. 

and  regulations  of  this  section,  and  of  the  laws  hereafter 
made  and  provided. 

[Allotment  of  Water  on  Alternate  Days.! 

§  4105.     This  section  is  copied  from  Mills'  Ann.  St.  Colo. 

§  2259. 

[Water  to  be  Prorated  in  Case  of  Deficiency.! 

§  4116.  This  section  is  substantially  the  same  as  Mills' 
Ann.  St.  Colo.  §  2267. 

IRRIGATION  COMPANIES. 
[Corporations  may  Construct  Ditches,  etc.  I 

§  4154.  Any  corporation  duly  organized  under  the  laws 
of  this  state  for  the  purpose  of  constructing  ditches  or  ca- 
nals to  carry  water  for  irrigating  purposes,  or  any  person  or 
persons,  or  association  or  firm,  may  construct  irrigating 
canals,  ditches  or  flume  ways  for  the  purposes  of  carrying 
water  from  any  natural  stream,  reservoir,  or  any  lake  with- 
in this  state,  and  may  condemn  the  right  of  way  therefor,  as 
hereinbefore  provided  for  by  sections  4133  to  4142,  for  the 
purposes  of  furnishing  water  to  persons  upon  the  line  of  said 
ditch,  or  its  lateral  branches,  to  irrigate  the  lands  of  any 
person  or  persons,  whether  the  same  be  on  any  natural 
stream  or  lake,  or  whether  or  not  said  corporation,  associa- 
tion, person  or  firm  owns  any  land  upon  the  line  of  the  said 
ditch,  or  its  laterals. 

[Ditch  Company  a  Public  Carrier.! 

§  4155.  Such  corporation,  person,  association  or  firm 
shall  be  deemed  to  be  a  public  carrier,  and  shall  at  all  times 


APPENDIX.  465 

be  subject  to  the  regulations  prescribed  for  said  ditch  by  the 
legislature  from  time  to  time. 

DUTIES  AND  LIABILITIES  OK  DITCH  OWNEKS. 

The  provisions  under  this  head  are  substantial  copies  of 
the  Colorado  statutes,  and  are  as  follows,  the  corresponding 
sections  of  Mills'  Statutes  being  enclosed  in  []  :  As  to  ditch 
embankments  and  tail  ditches,  section  4119  [2274]  ;  as  to 
bridging  ditches,  section  4120  [2276,  2277,  2287]  ;  as  to 
headgates,  section  4122  [2285]  ;  as  to  running  excess  of  water 
section  4121  [2283,  2284].  Owners  of  ditches  are  made 
liable  for  damages  resulting  through  neglect  or  refusal  to 
comply  with  these  provisions.  Section  4123. 

[Duty  of  Ditch  Owner  to  Keep  Ditches,  etc.,  in  Repair.  1 

§  4137.  The  owners  or  constructors  of  ditches,  canals, 
works  or  other  aqueducts,  and  their  successors  in  interest, 
using  and  employing  the  same  to  convey  the  waters  of  any 
stream,  spring  or  lake,  whether  the  said  ditches,  canals, 
works  or  other  aqueducts  be  upon  the  lands  owned  or  claimed 
by  them,  or  upon  other  lauds,  must  carefully  keep  and  main- 
tain the  same,  and  the  embankments,  flumes  or  other  con- 
duits by  which  such  waters  are  or  may  be  conducted,^  in  good 
repair  and  condition,  so  as  not  to  damage  or  in  any  way  in- 
jure the  property  or  premises  of  others. 

ADJUDICATION  OF  PRIORITIES. 

The  provisions  of  this  subject  [sections  4158-4165]  are 
taken  from  the  Colorado  statutes.  See  the  text,  section 
107. 


466  LAW  OF  IRRIGATION. 

MEASUREMENT  OF  WATER. 

§  4090.  The  unit  of  measure  for  water  for  irrigation, 
mining,  milling  and  mechanical  purposes  in  this  state  shall 
be  a  cubic  foot  of  water  per  second  of  time. 

O  FFENS  ES. 

[Interference  With  Headgate,  etcJ 

§  4128.  This  section  is  copied  from  Mills'  Ann.  St. 
Colo.  §  2385. 

[Injury  to  Ditches J 

§  4157.     Copied  from   Mills'   Ann.    St.    Colo.    §£    2283, 

[Running  Excess  of  Water  Through  Ditch.  1 

§  4121.  Copied  from  Mills'  Ann.  Colo.  §§  2283, 
2284. 

IRRIGATION  Drs "  RICTS. 

The  provisions  relating  to  irrigation  districts  [sections 
4166-4229]  are  modelled  on  the  California  acts. 


WYOMING. 

CONSTITUTIONAL  PROVISIONS. 

[Control  of  Water  in  State.  1 

Art.  2,  §  31.  Water  being  essential  to  industrial  pros- 
perity, of  limited  amount,  and  easy  of  diversion  from  its 
natural  channels,  its  control  must  be  in  the  state,  which,  in 
providing  for  its  use,  shall  equally  guard  all  the  various  in- 
terests involved. 

[Eminent  Domain J 

Art.  2,  §  32.  Private  property  shall  not  be  taken  for 
private  use  unless  by  consent  of  the  owner,  except  for  pri- 
vate ways  of  necessity,  and  for  reservoirs,  drains,  flumes  or 
ditches  on  or  across  the  lands  of  others  for  agricultural, 
mining,  milling,  domestic  or  sanitary  purposes,  nor  in  any 
case  without  due  compensation. 

Art.  2,  §  33.  Private  property  shall  not  be  taken  or 
damaged  for  public  or  private  use  without  just  compensa- 
tion. 

[Water  Property  of  State.  1 

Art.  8,  §  1.  The  water  of  all  natural  streams,  springs, 
lakes  or  other  collections  of  still  water  within  the  boundaries 
of  the  state  are  hereby  declared  to  be  the  property  of  the 
state. 


468  LAW  OF  IRRIGATION. 

[Board  of  Control.] 

Art.  8,  §  2.  There  shall  be  constituted  a  board  of  con- 
trol, to  be  composed  of  the  state  engineer  and  superinten- 
dents of  the  water  divisions,  which  shall,  under  such  regu- 
lations, as  may  be  prescribed  by  law,  have  the  supervision  of 
the  waters  of  the  state,  and  of  their  appropriation,  distribu- 
tion and  diversion,  and  of  the  various  officers  connected 
therewith.  Its  decisions  to  be  subject  to  review  by  the  courts 
of  the  state. 

[Priority  of  Appropriation.] 

Art.  8,  §  3.  Priority  of  appropriation  for  beneficial  uses 
shall  give  the  better  right.  No  appropriation  shall  be  denied 
except  when  such  denial  is  demanded  by  the  public  inter- 
ests. 

[Water  Divisions.] 

Art.  8,  §  4.  The  legislature  shall  by  law  divide  the  state 
into  four  (4)  water  divisions,  and  provide  for  the  appoint- 
ment of  superintendents  thereof. 

[State  Engineer.] 

Art.  8,  §  5.  There  shall  be  a  state  engineer,  who  shall 
be  appointed  by  the  governor  of  the  state  and  confirmed  by 
the  senate.  He  shall  hold  his  office  for  the  term  of  six  (6) 
years,  or  until  his  successor  shall  have  been  appointed,  and 
shall  have  qualified.  He  shall  be  president  of  the  board  of 
control,  and  shall  have  general  supervision  of  the  waters  of 
the  state  and  of  the  officers  connected  with  its  distribution. 
No  person  shall  be  appointed  to  this  position  who  has  not 
such  theoretical  knowledge  and  such  practical  experience 
and  skill  as  shall  fit  him  for  the  position. 


APPENDIX.  469 

STATUTORY  PROVISIONS. 
[References  to  Rev.  St.  1899.] 

Wyoming  has  a  large  body  of  statute  law  on  the  subject 
of  irrigation.  Much  of  this  has  already  been  set  out  in  sub- 
stance in  the  body  of  this  work,  and  will  therefore  not  be  re- 
peated here.  Thus,  for  provisions  as  to  the  adjudication  of 
priorities,  see  the  text,  section  106 ;  as  to  public  control  of 
irrigation,  see  section  122. 

APPROPRIATION  OF  WATKR. 

[Right  of  Appropriation  Limited.] 

§  895.  The  priority  of  right  to  the  use  of  water  shall 
be  limited  and  restricted  to  so  much  thereof  as  may  be  nec- 
essarily used  and  appropriated  for  irrigation,  or  other  bene- 
ficial purposes,  as  aforesaid,  irrespective  of  the  carrying 
capacity  of  the  ditch,  and  all  the  balance  of  the  water  not  so 
appropriated  shall  be  allowed  to  run  in  the  natural  stream 
from  which  such  ditch  draws  its  supply  of  water,  and  shall 
not  be  considered  as  having  been  appropriated  thereby;  and 
in  case  the  owner  or  owners  of  any  such  ditch,  canal  or 
reservoir  shall  fail  to  use  the  water  therefrom  for  irrigation 
or  other  beneficial  purposes,  or  shall  refuse  to  furnish  any 
surplus  water  to  the  owner  or  owners  of  lands  lying  under 
such  ditch,  as  hereinafter  provided,  during  any  two  succes- 
sive years,  they  shall  be  considered  as  having  abandoned  the 
same,  and  shall  forfeit  all  water  rights,  easements  and  priv- 
ileges appurtenant  thereto,  and  the  waters  formerly  appro- 
priated by  them  may  be  again  appropriated  for  irrigation 
and  other  beneficial  purposes,  the  same  as  if  such  ditch,  canal 
or  reservoir  had  never  been  constructed ;  neither  shall  the 


470  LAW  OF  IRRIGATION. 

owner  or  owners  of  any  such  ditch,  canal  or  reservoir  have 
any  right  to  receive  from  others  any  royalty  for  the  use 
of  the  water  carried  thereby,  but  every  such  owner  or  owners 
having  a  surplus  supply  of  water,  and  furnishing  the  same 
to  others  from  any  ditch,  canal  or  reservoir,  as  hereinafter 
provided,  shall  be  considered  common  carriers,  and  shall  be 
subject  to  the  same  laws  that  govern  common  carriers. 

[Sale  of  Surplus  Water — County  Commissioners  to  Fix  Rates J 

§  896.  The  owner  or  owners  of  any  ditch  which  carries 
a  greater  quantity  of  water  than  the  owner  or  owners  thereof 
necessarily  use  for  irrigation  and  other  beneficial  purposes 
in  connection  with  their  own  lands  shall,  when  application  is 
made  to  them  for  that  purpose,  furnish  such  surplus  water 
at  reasonable  rates  to  the  owners  of  lands  lying  under  any 
such  ditch  for  the  purpose  of  reclaiming  such  lands,  and 
rendering  the  same  productive ;  and  in  case  of  refusal  so  to 
do,  the  owner  or  owners  of  any  such  ditch  may  be  compelled 
by  injunction  suit  to  furnish  such  water  on  such  terms  as 
to  the  court  may  seem  meet  and  proper:  provided,  that  the 
board  of  county  commissioners  in  their  respective  counties 
shall  have  power,  when  application  is  made  to  them  by 
either  party  interested,  to  establish  reasonable  maximum 
rates  to  be  charged  for  the  use  of  water,  whether  furnished 
by  individuals  or  corporations. 

RIGHT  OF  WAV  FOR   DITCHES,  ETC. 

I  Right  of  Way  Granted.] 

§  897.  This  section  is  the  same  as  Mills'  Ann.  St.  Colo. 
§  2257,  concluding,  however,  with  the  proviso  that,  in  the 
construction,  keeping  up  and  using  any  ditch  through  the 


APPENDIX.  471 

lands  of  another  person,  the  person  or  persons  constructing 
or  using  said  ditch,  or  whose  duty  it  shall  be  to  keep  the 
same  in  repair,  shall  be  liable  to  the  person  owning  or 
claiming  such  land  for  all  damages  accruing  to  such  person 
by  reason  of  said  construction,  keeping  up  and  using  such 
ditch. 

[Right  Limited.] 

§   898.     Same  as  Mills'  Ann.  St.  Colo.  §  2258. 
[Condemnation  of  Right  of  Way.] 

Upon  the  refusal  of  owners  of  tracts  of  land  or  lands 
through  which  said  ditch  is  proposed  to  run  to  allow  of  its 
passage  through  their  property,  the  persons  desiring  to  open 
such  ditch  may  present  to  the  county  commissioners  of  the 
county  in  which  said  lands  are  located  a  petition  signed  by 
the  person  or  persons,  describing,  with  convenient  accuracy, 
the  lands  so  desired  to  be  taken  as  aforesaid,  setting  forth 
the  name  or  names  of  the  owner  or  other  person  interested, 
and  praying  the  appointment  of  three  appraisers  to  ascer- 
tain the  compensation  to  be  made  to  such  owner  or  persons 
interested.  Upon  the  receipt  of  said  petition,  the  said  coun- 
ty commissioners  shall  give  notice,  at  least  thirty  days  prior 
to  the  appointment  of  the  said  appraisers,  by  public  notice 
in  a  newspaper,  when  published  in  the  county,  or  by  post- 
ing three  or  more  notices  in  three  different  places  in  said 
county,  stating  that  such  appraisers  will  be  appointed  on  the 

day  of . 

[Preceding  of  Appraisers — Payment  of  Assessment.] 

§  900.  This  section  prescribes  the  duties  of  the  apprais- 
ers, and  provides  that  upon  the  payment  of  the  compensation 
assessed  the  person  desiring  to  construct  the  ditch  or  flume 
shall  have  the  right  of  way  therefor. 


472  LAW  OF  IRRIGATION. 

[Arbitration  of  Claim  for  Right  of  Way.] 

§§  904-90Y.  These  sections  provide  for  the  submission 
of  a  claim  for  a  right  of  way  by  the  parties  interested  to  a 
board  of  arbitration,  consisting  of  one  member  chosen  by 
each  of  the  parties,  and  a  third  by  the  two  thus  chosen. 
Any  two  may  render  a  decision.  An  appeal  is  allowed  with- 
in ten  days  to  the  board  of  county  commissioners,  and  the 
parties  then  proceed  as  though  the  matter  had  been  brought 
before  the  commissioners  in  the  first  instance.  If  no  appeal 
is  taken,  the  finding  of  the  arbitrators  is  final  and  binding, 
provided  each  party  shall  have  complied  with  the  finding, 
or  tendered  such  compliance. 

DUTIES  AND  LIABILITIES  OF  DITCH  OWNERS. 
CDitches  to  be  Kept  in  Repair.] 

§  901.  The  owner  or  owners  of  any  ditch  for  irrigation 
or  other  purposes  shall  carefully  maintain  the  embankments 
thereof,  so  that  the  waters  of  such  ditch  may  not  flood  or 
damage  the  premises  of  others. 

[Duty  to  Maintain  HeadgateJ 

The  appropriator  of  any  of  the  public  waters  of  the  state 
shall  maintain,  to  the  satisfaction  of  the  division  superin- 
tendent of  the  district  in  which  the  appropriation  is  made, 
a  substantial  headgate  at  the  point  where  the  water  is  di- 
verted, which  shall  be  of  such  construction  that  it  can  be 
locked  and  kept  closed  by  the  water  commissioner;  and  such 
appropriator  shall  construct  and  maintain,  when  required 
by  the  division  superintendent,  a  flume  or  measuring  device, 
as  near  the  head  of  such  ditch  as  is  practicable,  for  the  pur- 
pose of  assisting  the  water  commissio"her  in  determining  the 


APPENDIX.  473 

amount  of  water  that  may  be  diverted  into  such  ditch  from 
the  stream.  If  any  owner  or  appropriator  of  public  waters 
that  have  been  adjudicated  upon  should  refuse  or  neglect  to 
put  in  such  headgate  or  measuring  device,  after  thirty  days' 
notice  to  do  so  by  the  division  superintendent,  the  said  super- 
intendent may  notify  the  county  commissioners  of  the  coun- 
ty where  such  headgate,  flume  or  measuring  device  is  sit- 
uated, and  it  shall  be  the  duty  of  said  county  commissioners, 
when  so  notified  by  said  division  superintendent,  to  put  in 
such  headgate,  flume  or  measuring  device  at  the  expense  of 
i.he  county  where  the  expense  is  incurred,  and  present  a  bill 
of  costs  to  the  owner  or  owners  of  the  ditch,  and  if  such  own- 
«r  or  owners  shall  refuse  or  neglect  for  three  days  after  the 
presentation  of  such  bill  of  costs  to  pay  the  same,  the  said 
costs  shall  be  made  a  charge  upon  the  said  ditch,  and  shall 
be  collected  as  delinquent  taxes,  and  be  subject  to  the  same 
conditions  and  penalties  as  other  delinquent  taxes,  and,  un- 
til the  full  and  complete  payment  of  such  bill  of  costs,  it 
shall  be  the  duty  of  the  water  commissioner  of  the  district 
in  which  such  ditch  is  situated  to  close  and  keep  closed  the 
headgate  ol  such  ditch,  and  to  take  such  needful  steps  as 
will  prevent  any  water  from  being  diverted  therein  from  the 
source  of  supply. 

[Duty  to  Bridge  Ditches.] 

§  1959.  By  this  section  it  is  made  the  duty  of 
any  person,  company,  corporation  or  association  of  per- 
sons constructing,  operating  or  maintaining  any  ditch, 
canal  or  watercourse,  not  being  a  natural  stream,  for 
irrigation  or  other  purposes,  to  construct,  maintain 
and  keep  in  repair  a  good,  substantial  bridge,  not  less 
than  fourteen  feet  wide,  over  such  ditch,  canal  or  water- 


474  LAW  OF  IRRIGATION. 

course  where  it  crosses  any  public  highway  or  traveled  road. 
Violation  of  this  section  is  a  misdemeanor,  punishable  by  a 
fine  of  not  exceeding  $100  for  each  day  such  ditch,  etc., 
shall  be  unbridged,  insufficiently  bridged,  or  permitted  to 
remain  out  of  repair. 

[Construction  of  Bridge  by  County  Commissioners.] 

§  903.  This  section  provides  that  when  a  ditch  or  water- 
course constructed  across  any  public  traveled  road  is  not 
bridged  within  three  days,  the  county  commissioners  shall 
construct  a  bridge  and  collect  the  cost  thereof  from  the  own- 
er of  the  ditch  or  watercourse. 

[Duty  to  Protect  FishJ 

§  970.  This  section  provides  that  it  shall  be  the  duty  of 
every  person,  corporation  or  company,  who  shall  construct, 
maintain  or  operate  any  irrigating  ditch  or  canal,  to  con- 
struct and  maintain,  at  the  point  arid  place  where  the  water 
is  diverted  from  its  natural  channel,  some  fit  and  proper 
obstruction  whereby  all  fish  will  be  prevented  from  entering 
said  ditch  or  canal.  Violation  of  this  provision  is  made  a 
misdemeanor  punishable  by  fine  of  not  more  than  $100,  or 
by  imprisonment  in  the  county  jail  not  less  than  10  nor  more 
than  60  days,  or  by  both  such  fine  and  imprisonment. 

[Liability  of  Reservoir  Owner.  1 

§   974.     Copied  from  Mills'  Ann.  Colo.  §  2272. 

DITCHES  HELD  IN  CO-OWNERSHIP. 

[District  Court  May  Appoint  Person  to  Distribute  Water.] 
§§  908-914.     It  is  provided  that  whenever  two  or  more 


APPENDIX.  475 

joint  owners  in  an  irrigating  ditch  are  unable  to  agree  as 
to  the  division  or  distribution  of  water  received  through  such 
ditch,  it  shall  be  lawful  for  them,  or  any  of  them,  to  apply 
to  the  district  court  of  the  district  in  which  such  ditch  is 
located,  by  a  verified  petition  setting  forth  such  fact,  asking 
for  the  appointment  of  some  suitable  person  to  take  charge 
of  the  ditch  for  the  purpose  of  making  a  just  distribution  of 
the  water  tHerefrom  to  the  persons  entitled  thereto.  The 
proceedings  for  securing  such  appointment  are  prescribed. 
Upon  it  being  made  to  appear  to  the  court,  judge  or  commis- 
sioner hearing  the  application  that  the  protection  of  the 
rights  of  the  parties  requires  it,  he  shall  appoint  some  suitable 
disinterested  person  to  distribute  the  water,  who  shall  have 
exclusive  control  of  the  ditch  for  this  purpose  until  removed 
by  the  order  of  the  proper  court,  judge  or  commissioner. 
Provision  is  made  for  the  payment  of  the  compensation  and 
expenses  of  the  person  so  appointed. 

[Liability  of  Co-Owners  for  Maintenance  of  Ditch. 3 

§  915.  This  section  provides  that  upon  the  failure  or 
neglect  of  one  or  more  joint  owners  of  an  irrigation  ditch 
to  do  his  or  their  proportionate  share  of  the  work  necessary 
for  the  proper  maintenance  and  operation  of  such  ditch,  the 
other  owner  or  owners,  being  a  majority  of  the  owners,  de- 
siring the  performance  of  such  work,  may,  after  giving  ten 
days'  written  notice  to  the  delinquent  or  delinquents,  per- 
form such  work,  and  recover  therefor  from  the  others  their 
proportionate  share  of  the  expense  in  any  competent  court 
having  jurisdiction  of  the  subject-matter. 

[Lien  for  Work  Performed  on  Ditch J 

§  916.     Upon  the  failure  of  any  person  liable  under  the 


476  LAW  OF  IRRIGATION. 

preceding  section  to  pay  his  proportionate  share  of  the  ex- 
pense, as  stated,  within  thirty  days  after  receiving  a  state- 
ment of  the  same,  the  person  or  persons  so  performing  the 
labor  may  secure  payment  by  filing  a  verified  statement  of 
the  claim  with  the  county  clerk,  whereupon  such  claim  shall 
constitute  a  lien  against  the  interest  of  the  delinquent,  which 
lien  may  be  enforced  in  the  same  manner  as  mechanics'  • 
builders'  liens. 

IRRIGATION  COMPANIES. 

[Organization  of  Ditch  Companies.] 

§  3066.  This  section  is  substantially  the  same  as  3 
Mills'  Ann.  St.  Colo.  §  567,  omitting  the  provisions  as  to 
reservoirs  and  pipe  lines. 

[Right  of  WayJ 

§  3067.  Substantially  the  same  as  3  Mills'  Ann.  St.  Colo. 
§  568,  with  the  omission  noted  in  preceding  section. 

[Duty  to  Furnish  Water  to  Consumers.] 

§  3068.  This  section  is  copied  substantially  from  Mills' 
Ann.  St.  Colo.  §  570. 

[Ditch  to  be  Kept  in  Good  Condition.] 

§  3069.  This  section  is  copied  from  Mills'  Ann.  St.  Colo. 
§  571,  but  contains  a  proviso  that,  where  the  company's 
ditch  has  priority  of  right  by  location,  the  owners  of  the 
mining  claim  or  other  property  protected  by  this  section  shall 
be  compelled  to  protect  themselves  from  damages  from  the 
ditch,  and  shall  be  liable  to  the  ditch  owners  for  any  dam- 
ages resulting  to  the  ditch  by  reason  of  works  or  operations 
performed  on  such  claim  or  property. 


APPENDIX.  477 

[Ditch  Company  May  Issue  Bonds.! 

§  3070.  This  section  authorizes  ditch  companies  to  is- 
sue bonds. 

[Application  of  Preceding  Sections.] 

§  3071.  The  five  preceding  sections  shall  apply  to  all 
ditch  companies  already  formed  and  incorporated  under  the 
laws  of  Wyoming. 

[Capital  Stock  of  Ditch  Companies  Assessable.] 

§  976.  By  this  section,  the  capital  stock  of  ditch  com- 
panies whose  stock  or  ditch  property  is  owned  wholly  by  per- 
sons or  corporations  owning  lands  under  the.  line  of  the  com- 
pany's ditches,  and  using  water  from  such  ditches  by  reason 
of  being  stockholders,  is  made  assessable. 

OFFENSES. 

[Interference  with  HeadgateJ 

§  971.  Any  person  who  shall  willfully  open,  close, 
change  or  interfere  with  any  headgate  or  water  box  without 
authority  shall  be  deemed  guilty  of  a  misdemeanor,  and  on 
conviction  thereof  shall  be  fined  a  sum  not  exceeding  one 
hundred  dollars,  or  be  imprisoned  in  the  county  jail  for  a 
term  not  to  exceed  six  months,  or  both. 

[Water  Commissioner  May  Arrest.] 

§  972.  By  this  section,  water  commissioners  are  em- 
powered to  arrest  persons  offending  under  the  preceding 
section. 

[Injuring  Ditches,  etc.] 

§  973.     This  section  is  copied  from  Mills'  Ann.  St.  Colo. 


478  LAW  OF  IRRIGATION. 

§  2393,  except  that  the  penalty  prescribed  is  a  fine  not  ex- 
ceeding $100,  or  imprisonment  not  exceeding  six  month,  or 
both. 

MISCELLANEOUS  PROVISIONS. 
[Keferences  to  Kev.  St.  1899.] 

[Unit  of  Measurement.] 

§  968.  A  cubic  foot  of  water  per  second  of  time  shall 
be  the  legal  standard  for  the  measurement  of  water  in  this 
state,  both  for  the  purpose  of  determining  the  flow  of  water 
in  natural  streams,  and  for  the  purpose  of  distributing  water 
therefrom. 

[Dams — Plans  to  be  Submitted.] 

§  931.  Duplicate  plans  of  any  dam  across  the  channel 
of  a  running  stream,  above  five  feet  in  height,  or  of  any  other 
-dam  intended  to  retain  water  above  ten  feet  in  height,  shall 
be  submitted  to  the  state  engineer  for  his  approval,  and  it 
shall  be  unlawful  to  construct  such  dam  until  the  said  plans 
have  been  approved. 

[Authority  of  State  Engineer  to  Inspect  Works.! 

§  932.  This  section  authorizes  the  state  engineer  to  ex- 
amine and  inspect  during  construction,  dams  or  canals,  etc., 
carrying  over  fifty  cubic  feet  of  water  per  second,  and  to  or- 
der such  additions  or  alterations  as  he  may  deem  necessary. 

[Inspection  at  Instance  of  Landowner.] 

§  933.  This  section  provides  for  the  inspection  of  irri- 
gation works,  at  the  instance  of  persons  residing  on  or  own- 
ing land  in  the  neighborhood  thereof. 


APPENDIX.  479 

I  Vested  Rights  Preserved.] 

§§  902,  977.     By  these  sections  it  is  provided  that  the 
statutes  shall  not  be  so  construed  as  to  impair  vested  rights. 


TABLE  OF  CASES. 


[REFERENCES  ARE  TO  SECTIONS.] 


A. 

Ada  County  Farmers'  Irr.  Co.  v.  Farmers'  Canal  Co. 66,  72,  79,  85,  87 

Albuquerque  Land  &  Irr.  Co.  v.  Gutierrez 126,  128 

Alfalfa  Irr.  Dist.  v.  Collins 135 

Alhambra  Addition  Water  Co.  v.  Mayberry 17 

Alhambra  Addition  Water  Co.  v.  Richardson 88,  95;  115 

Aliso  Water  Co.  v.  Baker 4,  127 

Alta  Land  &  Water  Co.  v.  Hancock 3,  13,  35,  73,  79,  88,  90 

American  Co.  v.  Bradford 115 

Anaheim  Water  Co.  v.  Semi-Tropic  Water  Co 11,  79,  90 

Anthony  v.  Lapham 11,  16,  19 

Arave  v.  Idaho  Canal  Co 68 

Armstrong  v.  Larimer  County  Ditch  Co 53,  72 

Arnett  v.  Linhart 73,  78,  79 

Arnold  v.  Foot 16,  17 

Arnold  v.  Passavant 48,  85 

Atchison  v.  Peterson 23 

Atlantic  Trust  Co.  v.  Woodbridge  Canal  &  Irr.  Co 4,  74,  130 

Austin  v.  Chandler  10 

Authors  v.  Bryant  . . 91,  97 

a 

Baker  v.  Brown 3,  88,  90,  91 

Ball  v.  Kehl    90,  92,  115 

Baltes  v.  Farmers'  Irr.  Dist 139 

Barham  v.  Hostetter   Ill 

Barkley  v.  Tieleke   86 

Barnes  v.  Sabron    27,  28,  32,  48,  52,  54,  55,  56,  61 

Barrett  v.  Metcalf  3,  24,  33 

Barrows   v.   Fox    19,  42,  54,  95,  97,  109,  114 

Basey  v.  Gallagher  26,  27,  52 


482  TABLE    OF    CASES. 

Bates  v.  Van  Pelt 69 

Bathgate  v.  Irvine  11,  12,  13,  14,  90,  92,  94 

Baxter  v.  Gilbert 60 

Bean  v.  Stoneman 68,  81,  115 

Bear  Lake  &  River  Waterworks  &  Irr.  Co.  v.  Ogden  City 72,  76 

Beaver  Brook  Reservoir  &  Canal  Co.  v.  St.  Vrain  Reservoir  & 

Fish  Co 26,  28,  47,  85,  87,  118 

Beck  v.  Pasadena  Lake  Vineyard  Land  &  Water  Co 125 

Becker  v.  Marble  Creek  Irr.  Co 54,  59 

Benton  v.  Johncox 25,  26,  30 

Bigelow  v.  Draper 10,  120 

Blaisdell  v.  Stephens  Ill 

Blanchard  v.  Baker 11,  16,  19,  113 

Bliss  v.  Grayson  10,  68 

Bliss  v.  Johnson  114 

Bloom  v.  West  52,73 

Board  County  Com'rs  Park  Co.  v.  Locke 121 

Board  County  Com'rs  Pueblo  Co.  v.  Gould 121 

Board  of  Directors  Middle  Kittitas  Irr.  Dist.  v.  Peterson, 137 

Board  of  Directors  Modesto  Irr.  Dist.  v.  Tregea 136,  139 

Boehmer  v.  Big  Rock  Irr.  Dist 14,  116,  137,  138 

Boulder  &  Weld  County  Ditch  Co.  v.Lower  Boulder  Ditch  Co.101,  103 

Bowman  v.  Bowman  54,  55,  81,  90,  111 

Boyce  v.  Cupper  90 

Boynton  v.  Longley  68 

Bree  v.  Wheeler  91 

Bright  v.  Farmers'  High  Line  Canal  &  Reservoir  Co 131 

Brighton  &  N.  P.  Irr.  Co.  v.  Little 132 

Broadmoor  Dairy  &  Live  Stock  Co.  v.  Brookside  Water  &  Imp. 

Co 53,  97,  99,  100,  101 

Broder  v.  Water  Co . 26,  28,  66 

Brown  v.  Ashley 113,  114 

Brown  v.  Farmers'  High  Line  Canal  &  Reservoir  Co 131 

Brown  v.  Mullin  52,  58 

Bruening  v.  Dorr  60 

Bugh  v.  Rominger  103 

Burnham  v.  Freeman  52,  80 

Burrows  v.  Burrows  39 

Butte  Canal  &  Ditch  Co.  v.  Vaughan  43 

Bybee  v.  Oregon  C.  R.  Co 66 

C 

Cache  La  Poudre  Irr.  Co.v.Larimer  &  Weld  Reservoir  Co.48,79,85,134 


TABLE    OF    CASES.  483 

t 

Cache  La  Poudre  Reservoir  Co.  v.  Water    Supply  &  Storage    Co. 

47,  59,  61,  118 

Canal  Certificates,  In  re 121 

Carman  v.  Staudaker  79 

Carron  v.  Wood  55,  109 

Carson  v.  Gentner  25,  26,  28,  29 

Caruthers  v.  Pemberton 55 

Case  v.  Hoffman  11,  32 

Cash  v.  Thornton  -. 72,  110 

Catlin  Land  &  Canal  Co.  v.  Best 68,  69 

Cave  v.  Crafts  26,  78,  91 

Center  Creek  Water  &  Irr.  Co.  v.  Lindsay 90 

Central  Irr.  Dist.,  In  re 135,  136,  13» 

Central  Irr.  Dist.  v.  De  Lappe 135,  136,  137 

Chamberlain  v.  Amter  78 

Charnock  v.  Higuerra  1,  11,  14,  18,  42 

Charnock  v.  Rose  123 

Chauvet  v.  Hill  25 

Chicosa  Irr.  .Ditch  Co.  v.  El  Moro  Ditch  Co 44,  64 

Chidester  v.  Consolidated  Ditch  Co 68,  69 

Child  v.  Whitman  '. 72,  78,  80 

Childs  v.  Lowenbruck  103 

Church  v.  Stillwell 54,  59,  90,  99,  118 

Churchill  v.  Baumann  109,  114,  115 

Churchill  v.  Lauer  Ill 

City  of  Denver  v.  Mullen  26,  30,  68,  71 

City  of  San  Diego  v.  Linda  Vista  Irr.  Dist 139 

City  of  Santa  Cruz  v.  Enright  25,  92 

City  of  Springville  v.  Fullmer  123 

Clark  v.  Cambridge  &  A.  Irr.  &  Imp.  Co 24 

Clear  Creek  Land  &  Ditch  Co.  v.  Kilkenny 64,  68 

Clifford  v.  Larrien  74,  79,  110 

Clough  v.  Wing  10,  27,  54 

Clyne  v.  Benicia  Water  Co 78 

Coffin  v.  Left  Hand  Ditch  Co 22,  25,  50,  52,  121 

Coffman  v.  Robbins  9,  11,  81 

Colburn  v.  Richards  16 

Cole  v.  Logan  37,  41,  46,  47,  48,  51,  54,  82 

Colorado  Consolidated  Land  &  Water  Co.  v.  Morris 69 

Colorado  Land  &  Water  Co.  v.  Rocky  Ford  Canal,  etc.,  Co.  47,  51,  77 
Colorado  Milling  &  Elevator  Co.  v.  Larimer  &  Weld  Irr.  Co. 

53,  54,  59,  118- 


484  TABLE    OF    CASES. 

Combs  v.  Agricultural  Ditch  Co.  ..45,  47,  96,  124,  126,  129,  131,  134 

Combs  v.  Slayton   81 

Conant  v.  Jones  48 

Conkling  v.   Pacific  Imp.   Co 48,  110,  113,  114 

Consolidated  Canal  Co.  v.  Peters  132 

Consolidated  Home  Supply  Bitch  &  Reservoir  Co.  v.  Hamlin  ....   68 

Cook  v.  Hull  16 

Coonradt  v.  Hill  78,  88 

Cooper  v.  Miller   139 

Coventon  v.  Seufert   62,  78 

Cox  v.  Clough   ' 8?,  90,  91 

Crall  v.  Poso  Irr.  Dist. 135,  137,  139 

Crane   v.    Winsor    117 

Crawford  v.  Minnesota  &  M.  Land  &  Imp.  Co 90 

Creek  v.  Bozeman  Water  Works  Co 58 

Creighton  v.  Kaweah  Canal  &  Irr.  Co 60 

Crippen  v.  Burroughs 103 

Crisman  v.  Heiderer   67 

Crook  v.  Hewitt 110 

Crocker  v.  Benton  78 

Cross  v.  Kitts    32,  33 

Cruse  v.  McCauley  28,  29,  30,  41,  113 

Cullen  v.  Glendora  Water  Co 136,  139 

Cummings  v.  Hyatt 128 

Cummings  v.  Peters  62 

Curtis  v.  La  Grande  Hydraulic  Water  Co : 81,  94 

Cushman  v.  Highland  Ditch  Co 117 

D. 

Daley  v.  Anderson    106 

Daley  v.  Cox  123 

Dalton  v.  Rentaria 94 

Daum  v.   Conley    103 

Davis    v.    Gale 45.  50,  82,  85,  88 

Davis  v.  Getchell    11 

De  Baca  v.  Pueblo  of  Santo  Domingo 123 

D'e  Necochea  v.  Curtis   28,  32,  39 

Denver  City  Irr.  &  Water  Co.  v.  Middaugh  65 

Denver,  T.  &  Ft.  W.  R.  Co.  v.  Dotson 28,  32,  40,  74 

Deseret  Irr.  Co.  v.  Mclntyre  109 

Directors  of  Fallbrook  Irr.  Dist.  v.  Abila 136 

Dorr  v.  Hammond 82,  102 


TABLE    OP    CASES.  485 

Dougherty  v.  Haggin 55,  97,  115 

Downing  v.  Agricultural  Ditch  Co 115 

Downing  v.   More    62,  63,  64 

Doyle  v.  San  Diego  Land  &  Town  Co 79 

Drake  v.  Earhart    10,  23,  27,  28,  45,  52,  57,  77,  97 

Dunniway  v.  Lawson  52 

Durkee  v.  Cota 81 

Dyke   v.    Caldwell    37,  41 

E. 

Earl  of  Norbury  v.  Kitchin  14,  42 

Earl  of  Sandwich  v.  Great  Northern  R.  Co 11 

Edgar  v.  Stevenson  57,  58 

Egan  v.  Estrada   90 

Ellinghouse  v.  Taylor  4,  62 

Elliot  v.  Fitchburg  R.  Co 9,  11,  16,  17,  113 

Elliot  v.   Whitmore    95 

Ellis  v.  Pomeroy  Imp.  Co 25,  30 

Ellis  v.  Tone    11,  43,  109 

Ely   v.    Ferguson    26,  32,  35,  73 

Embrey  v.  Owen 11,  16,  113 

Emerson  v.  Eldorado  Ditch  Co 62 

Emigrant  Ditch  Co.  v.  Webber 128 

Empire  Land  &  Canal  Co.  v.  Board  Com'rs  Rio  Grande  County. .   76 

Evans  v."  Merriweather   3 

Evans  v.  Ross  109,  111,  114 

F. 

Fairbanks  v.  Rollins  81 

Fallbrook  Irr.  Dist.  v.  Abila 139 

Fallbrook  Irr.  Dist.  v.  Bradley 4,  135,  137,  139 

Farley  v.  Spring  Valley  Min.  &  Irr.  Co 28,  30 

Farm  Inv.  Co.  v.  Carpenter 10,  106,  120,  122 

Farmer  v.  Ukiah  Water  Co 78 

Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Moon 66 

Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Southworth.  .47, 

52,  75,  99,  115,  120,  121,  126,  131,  132 

Farmers'  High  Line  Canal  &  Reservoir  Co.  v.  Westlake 71 

Farmers'    Independent    Ditch    Co.  v.    Agricultural    Ditch    Co. 

47,  60,  101,  115,  121,  124,  130 

Farmers'  Independent  Ditch  Co.  v.  Maxwell 121 

Farrell  v.   Richards    11 


486  TABLE    OF    CASES. 

Faulkner  v.   Rondoni    . 28,  60,  88,  90 

Faull  v.  Cooke 30 

Feliz  v.  City  of  Los  Angeles  94 

Ferrea  v.  Chabot  81 

Ferrea  v.  Knipe   9,  11 

Fisher  v.  Bountiful  City  72,  78,  123 

Fitzell  v.  Leaky 73,  75 

Fleming  v.  Davis    7 

^  Floyd  v.  Boulder  Flume  &  Mercantile  Co 38 

Foreman  v.  Boyle Ill 

Frank  v.  Hicks   72,  73,  77,  78 

Fresno  Canal  &  Irr.  Co.  v.  Dunbar  132,  133 

Fresno  Canal  &  Irr.  Co.  v,  Rowell 132 

Fresno  v.  Fresno  Canal  &  Irr.  Co 68 

Frey  v.  Lowden   95,  96 

Ft.  Morgan  Land  &  Canal  Co.  v.  South  Platte  Ditch  Co.  36,  47,  72, 77 

Fudickar  v.  East  Riverside  Irr.  Dist 72 

Fulton  Irr.  Ditch  Co.  v.  Twombly  131 

G. 

Garrett  v.  Bishop   81 

Garwood  v.  New  York  Cent.  R.  Co '. 3,  11 

Garwood  v.  New  York  Cent.  &  H.  R.  R.  Co 11 

Gassert  v.  Noyes 50,  85 

Geddis    v.    Parrish    25,  28,  32,  80 

Geertson  v.  Barrack   52 

Gelwicks  v.  Todd  73,  78,  79 

Gibson  v.   Puchta    , 68 

Giddings  v.  76  Land  &  Water  Co 132 

Gillett  v.  Johnson  11,  16,  17,  32 

Golden  Canal  Co.  v.  Bright   124,  129,  131,  133 

Gould   v.   Eaton    9,  13,  19,  79,  113 

Gould   v.    Stafford    16,  17,  19,  79,  109,  112,  115 

Greeley  Irr.  Co.  v.  House  68,  69 

Green    v.    Carotta 21,  109 

Greenslade   v.   Halliday    11 

Greer  v.  Cache  Val.  Canal  Co 74 

Greer  v.  Heiser   54,  84,  104 

H. 

Hague  v.  Nephi  Irr.  Co , 46,  47,  54 

Hall  v.  Eagle  Rock  &  Willow  Creek  Water  Co 124 


TABLE    OF    CASES.  487 

Hall    v.    Lincoln    82,  85,  87 

Hall  v.   Swift    11 

Hammond  v.  Rose 28,  50,  52,  57 

Handy  Ditch  Co.  v.  South  Side  Ditch  Co 100,  101,  104 

Hanson  v.  McCue   33 

Hargrave    v.    Cook    9,  12,  25,  46,  67,  90 

Harris   v.    Harrison    11,  18,  116 

Harris  v.  Tarbet  135,  138 

Hayden  v.  Long 9,  11,  13 

Hayes  v.  Fine   72,  80 

Healy  v.  Woodruff   57,  59 

Heilbron  v.  Fowler  Switch  Canal  Co 79,  110,  113 

Heilbron  v.  Kings  River  &  F.  Canal  Co 110,  112 

Heilbron  v.  Last  Chance  Water  Ditch  Co 110 

Heilbron  v.  76  Land   &   Water  Co    12,  16,  18,  56,  113 

Heintzen  v.  Binninger 90,  115 

Herriman  Irr.  Co.  v.  Butterfleld  Min.  &  Mill  Co 109 

Herring  v.  Modesto  Irr.  Dist 137,  139 

Hesperia  Land  &  Water  Co.  v.  Rogers 91 

Hewitt  v.  San  Jacinto  &  P.  V.  Irr.  Dist 132,  138 

Hewitt  v.  Story   82 

Hill  v.  Lenormand  10,  23,  115 

Hillman  v.  Hardwick 52,  54 

Hillman  v.  Newington    Ill,  112 

Hindman    v.    Rizor    47,  48,  54,  80,  82,  85,  86,  87 

Hines  v.  Johnson  52 

Hoffman  v.  Stone   43 

Holman  v.  Pleasant  Grove  City   97,  123 

Houston  v.  Leach 33 

Howell  v.  Johnson 26 

Hughson  v.  Crane 139 

Hulsman   v.   Todd    '. Ill,  116 

Huning  v.  Porter  96 

Huntley,  In  re 97 

Huston    v.    Bybee    • 81,  90 

I. 

In  re  Canal  Certificates   121 

In  re  Central  Irr.  Dist 135,  136,  139 

In  re  Huntley  97 

In  re  Madera  Irr.  Dist 135,  136,  137,  139 

In  re  Senate  Resolution x 118,  121 

Irwin  v.  Strait  .  .   51 


488  TABLE    OP    CASES. 

J- 

Jacob   v.   Lorenz    74,  111 

Jarvis  v.  State  Bank  of  Ft.  Morgan   66,  74 

Jatunn  v.  O'Brien   44 

Jatunn  v.  Smith  93 

Jenkins  v.  Hooper  Irr.  Co 69 

Jennison  v.  Kirk  23,  26,  66 

Jensen   v.   Hunter    81,  91 

Jerrett  v.  Mahan 114,  115 

Johnson  v.  Bielenberg  97 

Johnson  v.  Superior  Court  114 

Jones  v.  Adams  11,  26,  52,  56 

Joseph  v.  Ager  67 

Judkins  v.  Elliott   28 

Junction  Creek  &  N.  D.  D.  &  I.  Ditch  Co.  v.  City  of  Durango.64,  130 

K. 

Kaler  v.   Campbell    25,  28,  52 

Kaufman  v.  Griesemer  11 

Kearney  Canal  &  Water  Supply  Co.  v.  Akeyson 68 

Keeney  v.  Carillo  33,  41,  51,  52 

Kerr  v.  Dudley  103 

Kidd  v.  Laird   72 

King  v.  Miles  City  Irr.  Ditch  Co 69 

Kirk    v.    Bartholomew    52,  96 

Kleinschmidt  v.  Greiser   48,  84,  97 

Knoth  v.  Barclay 62,  66 

Knowles  v.  Clear  Creek  P.  R.  Mill  &  Ditch  Co 50,  129 

Knox  v.  Board  Sup'rs,  Los  Angeles  Co 123 

Krall  v.  U.  S 25,  26 

L. 

Lahman  v.  Hatch   139 

La  Junta  &  L.  Canal  Co.  v.  Ft.  Lyon  Canal  Co 103 

La  Junta  &  L.  Canal  Co.  v.  Hess 132 

Lakeside  Ditch  Co.  v.  Crane  90,  97,  112,  123 

Lamar  Canal  Co.  v.  Amity  Land  &  Irr.  Co 40 

Lamson  v.  Vailes   99 

Landers  v.  Garland  Canal  Co 131 

Lanning  v.  Osborne 120,  131,  132,  133 

Larimer  Co.  Ditch  Co.  v.  Zimmerman  119 

Larimer  Co.  Reservoir  Co.  v.  People  36,  118,  120 


TABLE    OF    CASES.  439 

Larimer  &  Weld  Irr.  Co.  v.  Wyatt 121,  131 

Larimer  &  Weld  Reservoir  Co.  v.  Cache  La  Poudre  Irr.  Co.  .113,  118 

Last  Chance  Water  Ditch  Co.  v.  Heilbron 90,  91,  94 

Lavery  v.  Arnold    35,  81,  90,  92,  94 

Learned  v.  Tangeman   17 

Ledu  v.  Jim  Yet  Wa 91 

Lehi  Irr.  Co.  v.  Moyle   44,  54 

Leonard  v.  Shatzer  113 

Levy  v.   Salt  Lake   City    69 

Lillis  v.  Emigrant  Ditch  Co 115 

Lincoln  &  Dawson  Co.  Irr.  Dist.  v.  McNeal 137 

Lindsay  Irr.  Co.  v.  Mehrtens   4,  128 

Lisonbee  v.  Monroe  Irr.  Co 69 

Lobdell  v.  Hall    35 

Lobdell  v.  Simpson 43,  52 

Lorenz  v.  Jacob    4 

Louden  Irr.  Canal  Co  .v.  Handy  Ditch  Co 99,  100,  101,  105 

Low  v.   Rizor    36,  47,  48,  60,  82 

Low  v.   Schaffer    3,  54,  56,  57,  60,  80,  85,  86,  87 

Lower  Kings  River  Water  Ditch  Co.  v.  Kings  River  &  Fresno 

Canal  Co 72,  109 

Lower  Latham  Ditch  Co.  v.  Louden  Irr.  Canal  Co 94,  101 

Lux   v.    Haggin..3,  4,  9,  11,  12,  14,  16,  17,  24,  25,  26,  28,  29,  32,  72, 

78,  109,  114,  123,  127 
Lytle  Creek  Water  Co.  v.  Perdew 28,  61,  75,  111 

M. 

McBoom  v.  Thompson  81 

McCarty  v.  Boise  City  Canal  Co 70 

McCauley   v.    McKeig    117 

McClellan  v.  Hurdle    33,  109 

McCrary  v.  Beaudry 120,  131 

McDermont  v.  Anaheim  Union  Water  Co 131 

McDonald  v.  Bear  River  &  Auburn  Water  Min.  Co 36 

McDonald   v.    Lannen    80 

McFadden  v.  Board  Sup'rs  Los  Angeles  County 129,.  133 

McGhee  Irr.  Ditch  Co.  v.  Hudson   • 25,  127,  128 

McGinness    v.    Stanfield    95 

McGuire    v.    Brown    28,  30,  46,  66,  84 

McKinney  v.   Smith    45 

McLear  v.  Hapgood    74,  79 

McLure  v.  Koen 81,  97 

McPhail    v.    Forney    44,  78,  79,  114 


490  TABLE    OP    CASES. 

Mack    v.    Jackson 113 

Madera  Irr.  Dist.,  In  re 135,  136,  137,  139 

Maeris  v.  Bicknell 45 

Mahoney  v.  Neiswanger « 50,  57 

Malad  Val.  Irr.  Co.  v.  Campbell 60 

Mandell  v.  San  Diego  Land  &  Town  Co 131 

Manning  v.  Fife   54,  58 

Mathews   v.   Ferrea    ...... 93 

Mayberry  v.  Alhambra  Addition  Water  Co ^ . . .  21,  94 

Meagher  v.  Hardenbrook 45 

Merrill   v.    Southside   Irr.    Co 120,  130,  131 

Messinger's  Appeal   11,  88 

Middle  Creek  D'itch  Co.  v.  Henry    72,  77,  80,  85,  86 

Miles  v.  Du  Bey  107,  111 

Miller   v.    Douglas    62,  66,  67,  115 

Miller  v.  Highland  Ditch  Co Ill 

Miller  v.   Miller    11,  16 

Miller  v.  Ferris  Irr.  Dist  137,  139 

Millheiser  v.  Long  10,  37,  47,  52,  54,  55 

Miner  v.  Gilmour 3,  11 

Mitchell  v.  Patterson  136 

Modoc  Land  &  Live  Stock  Co.  v.  Booth 113 

Montana  Co.  v.  Gehring 117 

Montrose  Canal  Co.  v.  Loutsenhizer  Ditch  Co.   . .  53,  101,  104,  124 

Moore  v.   Clear  Lake  Water  Works    113,  115 

Morrison  v.  Winn    82,  94 

Moss  v.  Rose   48,  75,  85 

Mott  v.  Ewing  113 

Moyer  v.  Preston   10 

Mud  Creek  Irr.,  Agr.  &  Mfg.  Co.  v.  Vivian 2,  3,  25,  88,  90,  125 

Munroe  v.   Ivie 125,  130 

Murray  v.  Tingley 37,  39,  51 

N. 

Natoma  Water  &  Min.  Co.  v.  Hancock   54,  58,  67,  81,  90,  94 

Neil    v.    Tolman    . ." 93,  96,  98 

Nelson   v.    Clerf 74,  78 

Nephi  Irr.  Co.  v.  Jenkins  95,  97 

Nephi  Irr.  Co.  v.  Vickers  97 

Nevada  Ditch   Co.   v.   Bennett 36,  37,  41,  46,  47,  51,  126 

New  Loveland  &  G.  Irr.  &  Land  Co.  v.  Consol.  H.  S.  Ditch  & 

R.   Co 118 

New  Mercer  Ditch  Co.  v.  Armstrong. .   45,  54,  82,  84,  101,  103,  126 


TABLE    OF    CASES.  491 

Nichols  v.  Lantz 85 

Nichols  v.   Mclntosh 46,  .54,  72,  75,  84,  87,  99,  101,  104,  121 

Nippel  v.  Forker 66 

North  Point  Consol.  Irr.  Co.  v.  Utah  &  S.  L.  Canal  Co..   44,  117,  125 

North  Powder  Milling  Co.  v.  Coughanour  81,  90 

Northern  Colo.  Irr.  Co.  v.  Richards 131,  133 

o. 

O'Connor  v.  North  Truckee  Ditch  Co 131 

Offield  v.  Ish   25,  36,  46,  47,  50,  57 

Old  v.  Keener   68 

Oneto  v.  Restano 90 

Ophir  Silver  Min.  Co.  v.  Carpenter  41,  51,  55 

Oppenlander  v.  Left  Hand  Ditch  Co...   6,  10,  50,  73,  79,  99,  101,  134 

Osgood  v.  El  Dorado  Water  &  Deep  Gravel  Min.  Co 26,  28 

30,  37,  38,  41,  51,  52 

Otero  Canal  Co.  v.  Fosdick 63 

Oury   v.   Goodwin    4,  10,  62 

P. 

Paige  v.  Rocky  Ford  Canal  &  Irr.  ,Co 21,  43,  90 

Painter  v.  Pasadena  Land  &  Water  Co 33,  78 

Palmer  v.  Dodd     14 

Parker  v.  Larsen    ". 68 

Parks  Canal  &  Min.  Co.  v.  Hoyt .• 72 

Patterson  v.  Brown  &  Campion  Ditch  Co 64,  75 

Pawnee  Land  &  Canal  Co.  v.  Jenkins 131 

Paxton  &  Hershey  Irr.  Canal  &  Land  Co.  v.  Farmers'  &  Mer- 
chants' Irr.  &  Land  Co 1,  4,  62,  63,  128 

Peck  Lateral  Ditch  Co.  v.  Pella  Irr.  Ditch  Co 104 

People  v.  Farmers'  High  Line  Canal  &  Reservoir  Co. .   83,  85,  131 

People   v.   Jefferds    137 

People  v.  Linda  Vista  Irr.  Dist 137,  139 

People  v.  Rogers  117 

People  v.  Selma  Irr.  Dist 137 

People   v.   Turnbull    137 

Peregoy  v.   McKissick    47,  113 

Peregoy  v.  Sellick  116 

Perry  v.  Otay  Irr.  Dist 137,  139 

Peterson  v.  Durkee   103 

Platte  Val.  Irr.  Co.  v.  Buckers  Irr.,  Mill  &  Imp.  Co..  21,  33,  60,  109 
Platte  Water  Co.  v.  Northern  Colo.  Irr.  Co 1,  26,  47,  85,  99 


492  TABLE    OP    CASES. 

Platte  &  D.  Ditch  Co.  v.  Anderson  68 

Pope  v.  Kinman  • 11 

Posachane  Water  Co.  v.  Standart  96,  ,109 

Power  v.  Switzer  45,  47,  97 

Presbyterian  College  v.  Poole 100 

Prescott  Irr.  Co.  v.  Flathers  2,  128,  130 

Price  v.  Riverside  Land  &  Irr.  Co 131 

Putnam  v.  Curtis    85,  87,  99 

Q- 

Quigley    v.    Birdseye    35,  72,  86 

Quinlan  v.  Noble 62 

Quint  v.   Hoffman    137,  139 

R. 

Raft  River  Land  &  Cattle  Co.  v.  Langford 95 

Ramelli   v.    Irish    45,  46,  50 

Randall  v.  Silverthorn   11 

Raymond  v.  Wimsette    113 

Rhodes  v.  Whitehead  3,  9 

Rialto  Irr.  D'ist.  v.  Brandon  138,  139 

Richardson   v.   Kier 68 

Rigney  v.  Tacoma  Light  &  Water  Co 9,  78,  94,  113,  114 

Rio  Grande  Land  &  Canal  Co.  v.  Prairie  Ditch  Co 40,  103 

Riverside  Land  &  Irr.  Co.  v.  Jansen 54 

Riverside  Water  Co.  v.  Gage  9,  109 

Riverside  Water  Co.  v.  Sargent   54,  97,  124 

Roberts  v.  Arthur 109 

Rockwell  v.  Highland  Ditch  Co 118,  132 

Rocky  Ford  Canal,  etc.,  Co.  v.  Simpson 124,  131 

Rodgers  v.  Pitt  96,  111 

Roeder  v.  Stein   54,  56,  57 

Rominger  v.  Squires   52,  75,  87 

Ronnow  v.  Delmue  Ill 

Rupley  v.  Welch   118 

Russ  Lumber  &  Mill  Co.  v.  Muscupiabe  Land  &  Water  Co 132 

S. 

Saint  v.   Guerrerio    58,  109,  111,  112,  114,  115 

Salazar  v.  Smart 40,  114,  115,  116 

Salina  Creek  Irr.  Co.  v.  Salina  Stock  Co 54,  60,  61 


TABLE    OF    CASES.  493 

Sample  v.  Fresno  Flume  &  Irr.  Co 131,  132 

'Sampson    v.    Hoddinott    109,  113 

San  Diego  Flume  Co.  v.  Chase  132 

San  Diego  Flume  Co.  v.  Souther 4,  130,  132,  133 

San  Diego  Land  &  Town  Co.  v.  City  of  National  City 133 

San  Diego  Land  &  Town  Co.  v.  Sharp 120,  131 

San  Joaquin  &  K.  R.  Canal  &  Irr.  Co.  v.  Stanislaus  County    130,  133 
San  Luis  Land,  Canal  &  Imp.  Co.  v.  Kenilworth  Canal  Co.  .   63,  128 

San  Luis  Water  Co.  v.  Estrada  46 

Sand  Creek  Lateral  Irr.  Co.  v.  Davis  64 

Santa  Paula  Water  Works  v.  Peralta  35,  61,  75 

Schilling  v.  Rominger 52,  62,  75 

Schulz  v.  Sweeney   43 

Schwab  v.  Beam   53 

Scott  v.  Toomey  28,  30 

Sefton  v.  Prentice  81 

Senate  Resolution,  In  re 118,  121 

Senior  v.  Anderson   39,  48,  54,  90 

Shepard  v.  Tulare  Irr.  Dist 139 

Shields  v.  Orr  Extension  Ditch  Co 68,  70 

Shoemaker  v.  Hatch  66 

Shotwell  v.   Dodge    56 

Sieber  v.  Frink  46,  47,  51,  52,  85,  103 

Sievers  v.  Garfield  County  Court   63 

Silver  Creek  &  Panoche  Land  &  Water  Co.  v.  Hayes 109 

Simmons    v.    Winters    25,  32,  43,  48,  54,  78 

Simpson  v.  Williams    54 

Slattery  v.  Harley  25 

Sloan  v.  Glancy 85 

Smith  v.  Corbit   3,  46,  78 

Smith   v.   D'enniff 1,  25,  28,  29,  35,  73,  78,  86 

Smith  v.  Green 81,  82 

Smith  v.  Hawkins,   28,  54,  55,  82,  83,  89,  90,  93 

Smith  v.  Logan   35,  73,  83,  88,  110 

Smith  v.  North  Canyon  Water  Co 75,  90,  92 

Smith  v.  O'Hara 61,  80,  86 

Smith  v.  Phillips 97 

Smith  v.  Stearns  Rancho  Co Ill,  115 

Smyth  v.  Neal    41,  94 

Snyder  v.  Murdock 78,  134 

South  Boulder  &  R.  C.  Ditch  Co.  v.  Marfell 132,  133 

South  Yuba  Water  &  Min.  Co.  v.  Rosa 28 

Southern  Pac.  R.  Co.  v.  Dufour 33 


494  TABLE    OF    CASES. 

Southwestern  Land  Co.  v.  Hickory  Jackson  Ditch  Co 62 

Spargur  v.  Heard 88,  113 

Sparks  Mfg.  Co.  v.  Town  of  Newton 14 

Sparlin  v.  Gotcher 109 

Springville  v.  Fullmer 45,  77,  110 

Spurgeon  v.  Santa  Ana  Val.  Irr.  Co 134 

Stalling  v.   Ferrin 82 

Stanford  v.  Felt 9,  12,  19,  78 

Stark  v.  Miller 26 

State   v.    Brown 139 

State   v.   Marshall : 141 

State  v.  Wright 141 

Stein  Canal  Co.  v.  Kern  Island  Irr.  Canal  Co 52,  114 

Steinberger  v.  Meyer 97 

Sterling  Irr.  Co.  v.  Downer 99 

Stocker  v.  Kirtley 74,  117 

Stowell  v.  Johnson 10,  61 

Strait    v.    Brown 33,  52,  60 

Strickler  v.  City  of  Colorado  Springs 45,  46,  52,  53,  60,  77,  79 

Struby-Estabrook  Merc.  Co.  v.  Davis 134 

Strutt  v.  Bovingdon 11 

Sturr  v.  Beck 30 

Supply  Ditch  Co.  v.  Elliott 124,  134 

Sweetland    v.    Olsen 40,  78 

Swift  v.  Goodrich 11,  94,  114 

Sylvester  v.  Jerome 119 

T. 

i 

Taughenbaugh   v.    Clark 41,  47,  48 

Taylor  v.  Abbott 30,  32,  38 

Thomas  v.  Blaisdell 68 

Thomas  v.  Guiraud   1,  42,  45,  49,  50,  52 

Thorp  v.  Freed 25 

Thorp  v.  Woolman 121 

Thorpe  v.  Tenem  Ditch  Co 25,  28,  30,  35,  124 

Tolle   v.   Correth 2,  3,  25 

Tolman  v.  Casey 28,  93,  95 

Toohey  v.  Campbell 35,  45 

Townsend  v.  Fulton  Irr.  Ditch  Co 131 

Toyaho  Creek  Irr.  Co.  v.  Hutchins 62,  78 

Trambley  v.  Luterman 10,  45,  88 

Travelers'  Ins.  Co.  v.  Childs 72,  78,  116 


TABLE    OP    CASES.  495 

Tregea   v.    Owens 139 

Tripp  v.  Overocker 62,  63,  64,  65 

Tucker  v.   Jones : 75,  78,  82,  85,  98 

Turlock  Irr.  Dist.  v.  Williams 135,  137,  139 

Turner  v.  Cole    78,  85 

Tynon    v.    Despain 66,  81 

U. 

Ulbricht  v.  Eufaula  Water  Co 11 

Umatilla  Irr.   Co.   v.   Barnhart 4,  127 

Umatilla  Irr.  Co.  v.  Umatilla  Imp.  Co 37,  51,  114 

Union  Colony  v.   Elliott 72,  99,  102 

Union  Mill  &  Min.  Co.  v.  Dangberg..9,  11,  16,  26,  30,  59,  96,  98,  111 
Union  Mill   &   Min.   Co.   v.   Ferris.  .3,  9, 11, 16, 17, 19,  20,  26,  27,  90,  93 

United  States  v.  Rio  Grande  D'am  &  Irr.  Co 23,  24,  34 

United    States  Freehold  Land    &  Emigration    Co.  v.    Gallegos 

114,  115 
Upper  Platt  &  B.  Canal  Co.  v.  Ft.    Morgan  Reservoir  &  Irr. 

Co   103 

Utt   v.    Frey 44,  82,  85,  87 

V. 

Van  Bibber  v.  Hilton 18 

Vansickle   v.    Haines •. 9,  10,  26,  29,  93 

Vernon  Irr.  Co.  v.  City  of  Los  Angeles 9,  12,  25,  78,  90 

Vinland  Irr.  Dist.  v.  Azusa  Irr.  Co 33 

w. 

Walley  v.  Platte  &  D.  Ditch  Co 68 

Ward  v.  San  Diego  Land  &  Town  Co 133 

Ware   v.   Walker 28,  46,  67 

Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld  Irr.  Co.. 40,  41, 

44,  51,  82,  101,  118 
Water  Supply  &  Storage  Co.  v.  Larimer  &  Weld  Reservoir  Co. 

58,  60,  118 

Water  Supply  &  Storage  Co.  v.  Tenney 94,  101,  118,  125 

Watterson  v.   Saldunbehere 39,  111 

Weiderkind  v.  Tuolumne  County  Water  Co 69 

Weill  v.  Baldwin 81 

Wells  v.  Kreyenhagen 37,  47 

Wells  v.   Mantes..  39 


496  TABLE    OF    CASES. 

Wells    v.    Price 134 

West  v.  Taylor 32 

West  Point  Irr.  Co.  v.  Moroni  &  Mt.  P.  Irr.  Ditch  Co 112,  113 

Western  Irr.  &  Land  Co.  v.  Chapman 131 

Weston    v.    Alden 11,  16 

Wheeler  v.  Northern  Colo.  Irr.  Co 47,  52,  124,  126,  130,  131,  133 

White  v.  Farmers'  High  Line  Canal  &  Reservoir  Co 120,  132 

Wiggins  v.  Muscupiabe  Land  &  Water  Co 3,  18,  19,  21,  56 

Wilcox  v.  Hausch  43 

Wilkins    v.    McCue 93 

Williams  v.   Harter 32,  78,  109,  111 

Willow  Creek  Irr.  Co.  v.  Michaelson 33 

Wilmington  Canal  &  Reservoir  Co.  v.  Dominguez 128 

Wilson  v.  Perrault 133 

Wilterding  v.  Green 120,  131,  133  , 

Wold   v.    May 79 

Wood  v.  Etiwanda  Water  Co 25,  28,  93 

Wood  v.   Lowney 80,  86 

Woodruff  v.  Perry 139 

Wright  v.  Platt  Val.  Irr.  Co 126,  129,  130,  132 

Wyatt  v.  Larimer  &  Weld  Irr.  Co 72,  126,  130,  131,  132 

X. 

X.  Y.  Irrigating  D'itch  Co.  v.  Buffalo  Creek  Irr.  Co 103 

Y. 

Yeager  v.  Woodruff 62 

Yocco  v.  Conroy 79 

Yunker    v.    Nichols    .  .   62 


INDEX. 


[REFERENCES  ARE  TO  SECTIONS.] 


ABANDONMENT, 

posting  second  notice  of  appropriation  not  an,  37. 

turning  water  into  natural  stream  as,  43. 

of  ditch  without  that  of  water  right,  46,  84. 

delay  in  applying  water  construed  as,  48. 

right  of  riparian  owner  not  lost  by,  82. 

right  of  appropriator  lost  by,  82. 

easement  in  irrigating  ditch  lost  by,  82. 

water   abandoned   subject   to   new   appropriation,   82. 

distinguished  from  nonuser,  83. 

what  constitutes,  85. 

mere  nonuser  not  an,  85. 

transfer  of  water  right  as,  86. 

proof  of,  87. 

ABSORPTION, 

loss  of  water  by,  16,  20,  21,  105.  • 
allowance  for,  54. 

ACCIDENT, 

no  loss  of  water  right  by  delay  in  applying  water  caused  by,  47. 

ACEQUIAS, 

law  of  in  Arizona  and  New  Mexico,  123. 

ACKNOWLEDGMENT, 

of  conveyance  of  water  rights  not  necessary  between  parties, 
80. 


498  INDEX. 

ACTION, 

for  interference  with  water  rights,  108. 
for  unlawful  diversion  of  water, 

where  diversion  is  in  another  state,  26. 

none  where  appropriator  receives  all  the  water  he  is  en- 
titled   to,    60,    109. 

the  right  to  maintain,  109. 

none  unless  diversion  was  unlawful,  109. 

plaintiff's  right  must  be  invaded,  109,  113. 

measure  of  damages,  109. 
cause  01  action  arising  in  two  counties,  109. 

defenses  to,  109. 

bar  of  statute  of  limitations,  109. 

joinder  of  actions  and  parties,  111. 

against  several  defendants  acting  independently,  112. 

proof  of  injury  or  damages,  113. 

in  equity,  114. 

remedy  by  injunction,  114. 

pleading,  115. 

to  quiet  title  to  water  rights,  116. 
for  pollution  of  water,  117. 

for  confirmation  of  bonds  issued  by  irrigation  district,  139. 
ACTS  OF  CONGRESS, 
act  of  1866, 

water  rights  recognized  and  confirmed  by,  26. 

prospective  in  operation,  26. 

protection  of,  independent  of  state  lines,  26. 

operates  as  grant  of  water  right,  28. 

practical  construction  of,  29. 

applies  only  to  public  domain,  29. 

grants  right  of  way  over  public  land,  66. 
act  of  1870, 

declares  grants  of  land  subject  of  vested  water  rights,  28,  66. 

simply  declaratory  for  pre-existing  law,  28. 
act  of  1891, 

grants  right  of  way  over  public  land,  66. 
for  text  of  acts,  see  Appendix. 
ADJUDICATION  OF  PRIORITIES, 
general  jurisdiction  of  courts,  95. 

rules  as  to  determination  of  quantity  of  water  to  be  awarded, 
96. 

see  ''Quantity  of  Water." 
the   decree, 


INDEX.  499 

ADJUDICATION  OF  PRIORITIES— Cont'd. 

rights  of  parties  settled  by,  95,  97. 
court  may  enforce,  95. 
remedy  for  violation  of,  95. 
must  be  certain  and  definite,  97. 
must  be  consistent,  97. 
in.  Colorado, 

acts  in  relation  to,   99. 
definition  of,  99. 

acts  not  applicable  out  of  state,  99. 
any  interested  person  entitled  to  be  made  a  party,  99. 
allegations  of  complaint,  99. 
jurisdiction  of  courts,  100. 
the  decree,  101. 

no -definite  decree  for  uncompleted  ditch,  101. 
parties  enjoying  benefits  of  decree  bound  thereby,  101. 
decree  as  res  judicata,  101. 

decree  prima  facie  correct  as  between  different  water  dis- 
tricts, 101. 

proceedings  before  referee,  102. 
review  and  appeal,  103. 

decree  may  be  reopened  within  two  years,  103. 

sufficiency  of  petition  for,  103. 

mode  of  taking  appeal,  103. 

appeal  must  be  taken  within  two  years,  103. 

duty  of  appellate  court  to  examine  evidence,  103. 
independent  action  to  determine  priorities,  104. 
criticism  of  Colorado  system,  105. 
in  Wyoming, 

acts  in  relation  to,  106. 

jurisdiction  and  duties  of  board  of  control,  106. 
procedure,  106. 

certificate  of  appropriation,  106. 
act  of  1891  constitutional,  106. 
act  retrospective,  106. 
in  Washington,  Nebraska,  Montana,  Utah,  and  Oregon,  107. 

ADVERSE  USER, 

water  rights  acquired  by,  88,  93. 

user  must  be  adverse,  90. 

what  constitutes,  90. 

statutory  appropriation  not  necessary,  90. 

mere  construction  of  ditches  not,  90. 

user  must  be  continuous,  91. 


500  INDEX. 

ADVERSE    USER— Cont'd. 

what  constitutes  interruption,  91. 

proof  of,  92. 

between  tenants  in  common,  92. 

none  as  against  United  States,  93. 

when  begins  to  run  as  against  grantee  of  public  land,  93, 

ALIEN, 

may  appropriate  water,  35. 

may  take  or  convey  water  right  from  or  to  citizen,  35. 

grant  of  water  right  to,  not  abandonment  of  right,  86. 

AMENDMENTS, 

of  pleadings  in  actions  for  unlawful  diversion,  115. 

ANSWER, 

in  action  for  unlawful  diversion,  115. 

APPEAL, 

see  "Adjudication  of  Priorities." 

APPLICATION, 

for  permit  to  appropriate  water,  122. 

APPLICATION  OF  WATER  (By  Appropriator), 

water  must  be  applied  to  beneficial  use  within  reasonable  time, 

47. 

what  is  reasonable  time,  47. 
true  test  of  appropriation,  47,  49. 
gradual  application  through  successive  seasons,  48. 
mode  of,  immaterial,  49. 
place  of,  immaterial,  50. 

water  may  be  carried  over  intervening  ridge,  50. 
change  of  place  of,  50. 
use  of  water  on  wrong  land  by  mistake,  50. 

APPORTIONMENT, 

of  water  by  periods,  18. 

APPROPRIATION, 

origin  of  doctrine  of,  6,  23. 
water  right  may  be  acquired  by,  22. 
water  of  natural  streams  subject  to,  22. 
constitutionality  of  statutes  authorizing,  24. 
to  what  lands  doctrine  of,  applicable,  25. 
on  the  public  domain,  26. 


INDEX.  501 

APPROPRIATION— Cont'd. 

unappropriated  water  subject  to,  28. 

right  of,  on  private  land,  determined  by  state  law,  28,  29. 

as  against  patentee  of  land,  28-30. 

water  of  natural  streams  subject  to,  31. 

of  percolating  waters,  33. 

of  subterranean  waters,  33. 

of  water  of  navigable  streams,  34. 

who  may  appropriate  water,  35. 

defined,  36. 

elements  of,  36. 

how  made,  36-51. 

notice  of,  see  "Notice  of  Appropriation." 

map  and  statement  of,  see  "Declaration;"  "Map." 

by  taking  water  from  ditch  belonging  to  another,  44. 

cannot  be  constructive,  47. 

true  test  of,  47,  49. 

right  acquired  by,  52-61. 

by  irrigation  company,  126. 

see  "Application  of  Water;"  "Appropriator;"  "Diversion  of 
Water." 

APPROPRIATOR, 

relative  rights  of,  and  grantee  of  public  land,  28-30. 
need  not  have  title  to  land,  35. 

right  of,  relates  back  to  commencement  of  work  of  appropria- 
tion, 51. 

right  of,  measured  by  extent  of  appropriation,  54. 
right  of,  limited  to  amount  of  water  actually  needed  or  used, 

54,  55,  57,  58. 

right  of,  fixed  by  extent  of  appropriation,  59. 
cannot  extend  or  enlarge  use,  59. 
right  of,  depends  on  user,  61,  82. 
not  a  purchaser  within  recording  acts,  80. 
cannot  claim  specific  water  flowing  in  channel,  109. 
see,  also,  "Appropriation." 

APPURTENANCE, 

right  of  riparian  owner  to  use  water  is  not,  12. 

water  rights  as,  72,  73. 

water  right  when  an,  passes  with  conveyance  of  land,  78. 

shares  of  stock  in  irrigation  company  not,  134. 

ARID  REGION, 
defined,  2. 


502  INDEX. 

ARID  REGION— Cont'd. 

necessity  for  irrigation  in,  2. 

judicial  notice  of,  what  territory  is  embraced  in,  25. 

reclamation  of,  under  federal  and  state  statutes,  140,  141. 

ARIZONA, 

common  law  abolished  in,  10. 
public  acequias  in,  123. 

see  statutes  in  Appendix. 

ARTIFICIAL  CHANNEL,, 

no  riparian  rights  in,  21,  109. 

ARTIFICIAL   INCREMENT, 

of  stream,  belongs  to  person  developing  it,  21. 

ARTIFICIAL  WANT, 

irrigation  as  an,  3,  53. 

ASSESSMENT, 

of  damages  for  right  of  way,  65. 
by  irrigation  districts,  139. 

ASSIGNEE, 

of  water  right,  may  maintain  action  for  diversion  of  water,  110. 

B. 

BANKS, 

necessary  to  constitute  watercourse,  32. 
of  streams,  right  of  appropriator  to,  67. 

BED  OF  STREAM, 

right  of  appropriator  to,  67. 
removal  of  obstructions  from,  67. 
use  of,  as  reservoir,  118. 

BENEFICIAL   USE, 

see  "Application  of  Water." 

BOARD  OF  CONTROL, 
in  Wyoming,  106,  122. 

BOARD  OF  LAND  COMMISSIONERS, 

in  Colorado,  to  regulate  distribution  of  water  from  state  canals, 

121. 
to  select  lands,  etc.,  under  Carey  grant,  141. 


INDEX.  503 

BONDS, 

accompanying  petition  for  organization  of  irrigation  districts, 

136. 
of  irrigation  districts,  139. 

BRIDGES, 

over  ditches  crossing  highways,  71. 

BURDEN  OP  PROOF, 

that  land  was  public,  25. 

of  negligence  in  maintenance  of  ditch.  68. 

that  water  right  is  appurtenant,  73. 

of  abandonment,  88. 

of  ouster  of  cotenant,  92. 

that  no  more  water  was  taken  from  stream  than  turned  in,  109. 

of  title  to  riparian  land,  116. 

BY-LAWS, 

see  "Irrigation  Companies." 

c. 

CALIFORNIA, 

common  law  obtains  in,  10. 

doctrine  of  appropriation  originated  in,  23. 

water  commissioners  in,  123. 

irrigation  districts  in,  135. 

see  statutes  in  Appendix. 
CANALS, 

see  "Ditches  and  Canals." 

CANYON, 

appropriation  of  water  from,  31,  32. 

CAPACITY  OF  DITCH, 

as  determining  extent  of  appropriation,  55,  90. 
how  determined,  96. 

CAREY  ACT, 
text  of,  140. 
acceptance  of  grant  by  states,  141. 

CERTIFICATE  OF  APPROPRIATION, 
appropriator  to  receive,  101,  106. 

CHANGE, 

of  use  to  which  water  is  put,  45,  77. 
of  point  or  means  of  diversion,  46. 
of  place  of  use,  50. 


504  INDEX. 

CHANNEL, 

watercourse  must  have  definite,  32. 
see,  also,  "Natural  Channel." 

CITY, 

when  required  to  bridge  ditches  in  streets,  71. 

may  purchase  right  of  irrigation  for  municipal  purposes,  77. 

may  maintain  action  for  diversion  of  water,  110. 

regulation  and  control  of  irrigation  by,  123. 

may  be  included  within  irrigation  district,  136. 

COLLATERAL  ATTACK, 

organization  of  irrigation  district  not  subject  to,  137. 

COLORADO, 

common  law  not  in  force  in,  10. 

see,    also,    "Adjudication    of    Priorities;"    "Constitutional 

Law;"  "Public  Control  of  Irrigation." 
see  statutes  in  Appendix. 

COMMON  LAW, 

right  to  use  water  for  irrigation  at,  9,  11. 
in  what  states  in  force,  10. 
inapplicable  in  mining  regions,  23. 

COMPLAINT, 

in  adjudication  proceedings  in  Colorado,  99. 
in  action  for  unlawful  diversion  of  water,  115. 
in  action  by  irrigation  company  to  condemn  water  rights  and 
land,  127. 

CONDEMNATION, 

of  right  of  way  for  ditches,  etc.,  4,  62-65,  128,  138. 
of  riparian  rights,  12,  127,  128. 

CONFIRMATION  ACT, 

for  confirmation  of  bonds  issued  by  irrigation  districts,  139. 

CONGRESS, 

see  "Acts  of  Congress." 

CONSTITUTIONAL  LAW, 

constitutionality  of  statutes  authorizing  appropriation,  24. 
Colorado  "map  and  statement  law"  unconstitutional,  40. 
Colorado  statute  authorizing  the  enlargement  of  private  ditches 

unconstitutional  in  part,  64. 
Wyoming    adjudication  act  constitutional,  106. 


INDEX.  505 

CONSTITUTIONAL  LAW— Cont'd. 

Colorado    statute    providing  for    superintendents    of  irrigation 

constitutional,  121. 

Montana  act  accepting  grant  made  by  Carey  act  constitutional, 
141. 

CONSTRUCTIVE  APPROPRIATION, 
no  such  thing  as,  47. 

CONSUMERS, 

right  to  continue  purchasing  water  from  company's  ditch,  131. 
may  enjoin  company  from  furnishing  water  to  others  so  as  to 

compel    prorating,  131. 
must  make  seasonable  application  for  water  and  tender  price, 

131. 
see,  also,  "Irrigation  Companies." 

CONTRACTS, 

right  to  use  of  water  may  be  acquired  by,  81. 
for  water  rights,  within  statute  of  frauds,  81. 
with  irrigation  companies, 

construction  of,  132. 

to  furnish  water  in  excess  of  company's  ability  illegal,  132. 

permitting  consumer  to  take  water  from  ditch,  illegal,  132. 

decisions  of  state  courts  as  to  validity  of,  binding  on  federal 
courts,  132. 

cancellation  of,  by  court  of  equity,  132. 

CONTRIBUTORY  NEGLIGENCE, 

doctrine  of,  applied  to  actions  for  damages  from  ditches,  70. 

CONVEYANCE, 

see  "Transfer." 

CORPORATIONS, 

see  "Irrigation  Companies;"  "Irrigation  Districts." 

COTENANCY, 

see  "Tenants  in  Common." 

COUNTY  COMMISSIONERS, 

to  appoint  or  constitute  water  commissioners,  123. 
to  fix  water  rates,  133. 

COUNTY  COURT, 

in    Colorado    has    concurrent   jurisdiction    with    district    court 
proceedings,  62. 


506  INDEX. 

CUSTOMS, 

see  "Local  Customs;"  "Miners'  Customs." 

D. 

DAMAGES, 

assessment  of,  in  condemnation  proceedings,  6i?. 
none  for  mere  existence  of  ditch,  68. 

liability  for,  caused  by  construction  and  use  of  ditches,  68,  69, 
liability  of  ditch  companies  for,  69. 
measure  of,  in  action  for  unlawful  diversion,  109. 
liability  for,  caused  by  reservoirs,  119. 

measure  of,  for  failure  of  irrigation  company  to  furnish  water, 
131. 

DECLARATION, 

of  appropriation  to  be  filed  for  record,  40. 

DECREE, 

see  "Adjudication  of  Priorities." 

DEEDS, 

water  rights  and  ditches  conveyed  by,  80. 

valid  between  parties,  though  not  acknowledged  or  recorded,  80. 

DEFENSES, 

to  action  for  unlawful  diversion  of  water,  109. 

DEFINITIONS, 
irrigation,  1. 
water  right,  1. 
arid  region,  2. 
subhumid  region,  2. 
farming  neighborhood,  4. 
riparian  lands,  14. 
riparian  owner,  14. 
appropriation,  36. 

domestic  use,  under  Colorado  constitution,  53. 
adjudication  of  priorities,  in  Colorado,  99. 

DESERT  LAND  ACTS, 

text  of  federal  acts,  140. 
the  state  statutes,  141. 

DILIGENCE, 

see  "Reasonable  Diligence." 


INDEX.  507 

DIRECTORS  OF  IRRIGATION  DISTRICTS, 
powers  and  duties  of,  138. 

DISTRICT  COURT, 

jurisdiction  of  adjudication  proceedings  in  Colorado,  100. 
in  Idaho  to  fix  water  rates,  133. 

DISTRICTS, 

see  "Irrigation  Districts;"  "Water  Districts." 

DITCH  COMPANIES, 

see  "Irrigation  Companies." 

DITCHES  AND  CANALS, 

use  of  natural  channel  or  ravine  as,  43. 

use  of,  belonging  to  or  constructed  by  another,  44. 

only  one  ditch  when  practicable,  63. 

enlargement  of,  belonging  to  another,  64. 

liability  for  damages  caused  by,  68,  69. 

to  be  bridged  where  crossing  highways,  71. 

property  in,  74. 

part  of  land,  74. 

ownership  of,  distinct  from  ownership  of  water  right,  74. 

repair  of,  by  tenants  in  common,  75. 

destruction  of,  measure  of  damages,  74. 

injury  to,  misdemeanor,  74.  - 

action  to  protect,  74,  108. 

taxation  of,  76. 

abandonment  of,  84. 

DIVERSION  OF  WATER, 

point  of,  by  riparian  owner,  20. 

within  reasonable  time  essential  to  appropriation,  41. 
what  is  reasonable  time  for,  41. 
modes  of,  immaterial,  42. 

means  of,  snould  be  economical,  42,  54,  56,  58. 
use  of  natural  channel  or  ravine  for,  43. 
use  of  ditch  belonging  to  or  constructed  by  another,  44. 
must  be  with  intent  to  apply  water  to  beneficial  use,  45. 
see,  also,  "Action." 

DIVISION, 

see,  "Water  Divisions." 

DRAINAGE, 

diversion  of  water  for  purpose  of,  not  an  appropriation,  45. 


508  INDEX. 

E. 

EASEMENT, 

right  of  riparian  owner  not  an,  12. 

over  private  lands,  62. 

over  public  lands,  66. 

to  enter  upon  land  of  another,   67. 

secondary,  67. 

see,  also,  "Right  of  Way." 

EJECTMENT, 

will  not  lie  to  recover  watercourse,  114,  note. 

ELECTION, 

of  officers  to  control  acequias,  123. 

to  decide  upon  organization  of  irrigation  district,  136. 

of  officers  of  irrigation  district,  136. 

to  decide  upon  issuance  of  bonds  by  irrigation  district,  139. 

EMINENT  DOMAIN, 

general  rules  as  to  exercise  of  right  of,  4. 
state  may  appropriate  water  under  right  of,  24,  note, 
see,  also,  "Condemnation ; "  "Right  of  Way." 

ENLARGEMENT, 

of  ditch  belonging  to  another,  44,  64. 
of  use  of  water  appropriated,  48,  59. 

ENTIRE  FLOW  OF  STREAM, 

right  of  riparian  proprietor  to  consume,  3,  17,  18. 
right  of  appropriator  to  consume,  57. 

ENTRY,  RIGHT  OF, 

.  for  changing  point  of  diversion,  66,  67. 
for  construction  and  maintenance  of  ditch,  67. 
for  removal  of  obstructions  from  stream,.  67. 

EQUITY,  COURT  OF, 

jurisdiction  of,  to  adjudicate  priorities,  95. 

may  refer  cause  to  master,  95. 

may  prescribe  mode  of  measuring  water,  95. 

jurisdiction  of,  in  actions  for  interference  with  water  rights,  114. 

may  restrain  filling  of  reservoir,  119. 
ESTOPPEL, 

by  license  to  divert  water,  81. 

water  rights  may  be  lost  by,  94. 

mere  acquiescence  in  diversion  does  not  result  in,  94. 

to  question  validity  of  decree  in  adjudication  proceedings,  101. 


INDEX.  509 


EVAPORATION, 

loss  of  water  by,  16,  20,  21. 
allowance  for,  54. 


F. 


FARMING  NEIGHBORHOOD, 
term  defined,  4. 
supplying  water  to,  public  use,  4. 

FEDERAL  COURT, 

suit  in,  to  enjoin  diversion  of  water  in  another  state,  26. 
decisions  of  state  court  as  to  validity  of  irrigation  contracts. 

binding  on,  132. 
construction  of,  of  acts  confirming  bonds  of  irrigation  districts 

not  binding  on  state  courts,  139. 

FORFEITURE, 

not  favored,  87. 

see,  also,  "Abandonment;"  "Adverse  User;"  "Estoppel." 

FREEHOLD  ESTATE, 

water  right  is,  72,  103,  note. 

G.     . 

GRANT, 

see  "Transfer." 

GREAT  BRITAIN, 

necessity  for  irrigation  in,  1,  5. 
common  law  in  force  in,  10. 

H. 

HEADGATE, 

may  be  closed  by  wateV  commissioner,  121,  122. 

HIGHWAYS, 

ditches  crossing,  to  be  bridged,  71. 

I. 

IDAHO, 

common  law  not  in  force  in,  10. 
public  control  of  irrigation  in,  123. 
see  statutes  in  Appendix. 

ILL  HEALTH, 

of  appropriator,  no  excuse  for  delay  in  diverting  water,  41. 


510  INDEX. 

INCH, 

see  "Miners'  Inch." 

INCREASE, 

right  to  increase  extent  of  original  appropriation,  48. 

INDEPENDENT  ACTION, 

for  determination  of  priorities,  10' 

INDIAN, 

appropriation  by,  35. 

INJUNCTION, 

to  restrain  unlawful  diversion  of  water,  109,  111,  113,  114. 
to  restrain  filling  of  reservoir,  119. 

INTENT, 

diversion  of  water  must  be  with  intent  to  apply  to  beneficial 
use,  45. 

abandonment  a  question  of,  85. 

1 

INTERNAL  IMPROVEMENTS, 
public  reservoirs  are,  118. 
state  canals  and  reservoirs  are,  121. 
ditches  and  canals  of  irrigation  company  may  be,  128,  note. 

INTERRUPTION, 

of  adverse  user,  91. 

IRRIGATION, 
defined,  1. 
necessity  for,  2,  5. 
natural  or  artificial  want,  3,  53. 

IRRIGATION  COMPANIES,  * 

distribution  of  water  by,  a  public  use,  4,  127,  128. 
liability  of,  for  damage  caused  by  ditches,  69. 
one  company  may  succeed  to  rights  of  another,  97. 
necessity  for,  124. 
classes  of,  124. 
private  companies,  124. 
organization  of,  124. 
mutual  ditch  companies, 

nature  of,  124. 

relation  between  company  and  members  one  of  contract, 
124. 

shares  of  stock  in,  124. 

stock  assessable,  124. 


INDEX.  511 

IRRIGATION  COMPANIES — Cont'd. 

are  trustees  for  stockholders  and  consumers,  124. 

may  maintain  action,  124. 

acquisition  of  water  rights  by,  125. 

grants  of  water  rights  to,  by  legislature,  125. 

power  of,  to  purchase  water  rights,  can  be  questioned  only  by 

state,  125. 
appropriation  of  water  by, 

ditch  company  may  appropriate  water,  126. 

subject  to  ordinary  rules  of  law  as  to  appropriation,  126. 

ditch  company  agent  of  consumer,  126. 

ditch  company  not  proprietor  of  water  diverted  by  it,  126. 
condemnation  of  water  rights  by,  127. 
condemnation  of  right  of  way  by,  128. 

power  of,  to  condemn  land,  may  include  power  to  condemn  wa- 
ter rights,  127,  128. 
by-laws, 

ditch  company  may  adopt  reasonable  by-laws  and  regula- 
tions, 129. 

must  be  in  accordance  with  law,  129. 

cannot  deprive  consumer  of  his  constitutional  rights,  129. 

providing  that  water  be  sold  to  stockholders  only,  129. 
are  private  corporations,  130. 
are  public  carriers  of  water,  130. 
subject  to  public  control,  130,  133. 
duty  of,  to  furnish  water  to  consumers,  131. 

see  "Consumers." 
delivery  of  water  may  be  compelled  by  mandamus,  131. 

see  "Mandamus." 

liability  of,  for  failure  to  furnish  water,  131. 
contracts  for  water,  132. 

see  "Contracts." 
rates  for  water,  133. 

see  "Water  Rates." 

IRRIGATION  DISTRICTS, 

California  act  relating  to,  constitutional,  4,  135. 

statutes  relating  to,  passed  in  several  states,  135. 

how  organized,  136. 

proceedings   for  organization  of,   liberally   construed,   136. 

inclusion  and  exclusion  of  land,  136. 

town  or  city  may  be  included  in,  136. 

public  land  may  be  included  in,  136. 


512  INDEX. 

IRRIGATION  DISTRICTS— Cont'd. 
election  of  officers  of,  136. 
not  municipal  corporations,  137. 
are  public  corporations,  137. 

organization  of,  not  subject  to  collateral  attack,  137. 
cannot  be  dissolved  by  courts,  137. 
laches  may  be  imputed  to,  137. 
powers  and  duties  of  board  of  directors,  138. 
may  sue  and  be  sued,  138. 
issue  of  bonds,  139. 
levy  of  assessments,  139. 

judicial  confirmation  of  issue  and  sale  of  bonds,  139. 
judgment  of  court  conclusive,  139. 

IRRIGATION  LAW, 

rise  and  growth  of,  5. 
two  systems  of,  6. 

\      of  Colorado  does  not  change  common-law  doctrine  as  to  other 
uses  of  water,  53. 

J- 
JOINDER  OF  ACTIONS, 

in  actions  for  diversion  of  water,  111. 

JOINDER  OP  PARTIES, 

in  actions  for  diversion  of  water,  111. 

JUDICIAL  NOTICE, 

of  necessity  for  irrigation,  2. 

of  what  territory  is  arid,  25. 

of  local  customs,  laws,  and  decisions,  27. 

JURISDICTIONS, 

of  federal  government  over  public  domain,    26. 
of  federal  government  over  navigable  streams,  24,  34. 
see  "County  Court;"  "District  Court;"  "Equity." 

JURY, 

right  to  in  equitable  actions,  114,  117. 

L. 

LACHES, 

may  be  imputed  to  irrigation  district,  137. 

LAKE, 

appropriator  from,  stream  issuing  from,  protected,  60. 


INDEX.  513 

LESSEE, 

of  reservoir,  liable  for  damages  caused  by  it,  119. 
see,  also,  "Tenant." 

LICENSE, 

parol  license  to  divert  water  ordinarily  revocable,  81. 
not  revocable  when  acted  on,  81. 

LOCAL   CUSTOMS,   LAWS  AND   DECISIONS, 

right  of  appropriation  on  public  land  established  by,  26,  27. 
judicial  notice  of,  27. 


M. 

MANDAMUS, 

will  not  lie  to  compel  irrigation  officer  to  close  headgates,  121. 
delivery  of  water  by  irrigation  company  may  be  compelled  by, 

131. 

petition  for,  131.  * 

not  appropriate  remedy  to  secure  perpetual  right  to  water,  131. 

MAP, 

of  ditch,  etc.,  to  be  filed  for  record,  40,  122. 

MASTER, 

court  of  equity  may  refer  cause  to,  95. 

MAXIMS, 

aqua  currit  et  debet  currere,  ut  currere  solebat,  9,  note. 

de  minimis  non  curat  lex,  9,  note. 

sic  utere  tuo  ut  alienum  non  laedas,  68,  note. 

MEANS, 

of  diverting  and  conducting  water  immaterial,  1. 

MEASUREMENT  OF  WATER, 

court  of  equity  may  prescribe  method  of,  95. 

reasonable  approximation  to  accuracy  in,  should  be  aimed  at 

by  court,  96. 
unit  of,  97. 

by  state  engineer  in  Wyoming,  106. 
by  state  engineer  in  Colorado,  121. 

MECHANICS'  LIENS, 

on  ditches  and  canals,  74. 

MEXICAN  LAW, 

law  of  Arizona  and  New  Mexico  founded  on,  123. 


514  INDEX. 

MINERS'  CUSTOMS, 

appropriation  under,  23. 

MINERS'  INCH, 

as  unit  of  measurement  of  water,  97. 

MONTANA, 

adjudication  of  priorities  in,  107. 
acceptance  of  grant  made  by  Carey  act,  141. 
see  statutes  in  Appendix. 

MUNICIPAL  CORPORATIONS, 
irrigation  districts  as,  136. 

MUTUAL  DITCH  COMPANIES, 
see  "Irrigation  Companies." 

N. 

NATURAL  CHANNEL, 

may  be  used  as  part  of  ditch,  43. 

NATURAL  OVERFLOW, 
irrigation  by,  1,  49. 

NATURAL  WANT, 

irrigation  as,  3,  53. 

to  be  preferred  to  other  wants,  3. 

consumption  of  entire  flow  of  stream  for,  17. 

NAVIGABLE   STREAMS, 
federal  control  of,  24,  34. 
appropriation  of  water  of,  34. 

NEBRASKA, 

appropriation  acts  unconstitutional,  24. 
common  law  in  force  in,  24,  note, 
adjudication  of  priorities  in,  107. 
public  control  of  irrigation  in,  123. 
see  statutes  in  Appendix. 

NEGLIGENCE, 

liability  for  damages  from  ditches  caused  by,  68,  69. 

burden  of  proving,  68. 

proof  of,  not  required  in  action  for  damage  from  reservoir,  119. 

NEVADA, 

common  law  not  in  force  in,  10. 
public  control  of  irrigation  in,  123. 
see  statutes  in  Appendix. 


INDEX.  515 

NEW  APPROPRIATION, 

appropriates  may  make,  59. 

NEW  MEXICO, 

common  law  not  in  force  in,  10. 
public  acequias  in,  123. 

see  statutes  in  Appendix. 

NONUSER, 

right  of  riparian  owner  not  lost  by,  12,  82. 
right  of  appropriator  lost  by,  82. 
must  continue  for  prescriptive  period,  83. 
see,  also,  "Abandonment." 

NORTH  DAKOTA, 

common  law  in  force  in,  10. 
see  statutes  in  Appendix. 

NOTICE  OF  APPROPRIATION, 

posting  of,  required  in  some  states,  37. 

as  evidence,  37. 

posting  of  second  notice  not  abandonment  of  original  right,  37. 

what  is  sufficient  notice,  38. 

object  of,  39. 

appropriation  without  posting  of,  39. 

strict  compliance  with  statute  relating  to,  required,  51. 

NUISANCE, 

irrigating  ditch  not  necessarily  a,  68. 
pollution  of  water  as,  117. 

o. 

OBSTRUCTIONS, 

right  to  increased  flow  of  water  caused  by  removal  of,  43. 
right  of  entry  for  removal  of,  from  bed  of  stream,  67. 
court  of  equity  may  require  removal  of,  114. 

OREGON, 

common  law  in  force  in,  10. 
adjudication  of  priorities  in,  107. 
see  statutes  in  Appendix. 

P. 
PAROL, 

transfers  of  ditch  or  water  right,  80. 
license  to  use  water,  81. 


516  INDEX. 

PATENTEE, 

relative  rights  of  appropriates  on  public  land,  and  of,  28-30. 
of  public  land,  rights  relate  back  to  inception  of  title,  30,  93. 

PERCOLATING  WATERS, 

ordinarily  not  subject  to  appropriation,  33. 

may  be  appropriated  when  collected  in  an  underground  stream, 

33. 
when  presumed  to  augment  flow  of  stream,  60. 

PERCOLATION, 

unlawful  diversion  by  means  of,  109. 

PERIODS, 

apportionment  of  water  by,  18. 
use  of  water  by,  61. 

PERSONAL  PROPERTY, 
water  as,  72. 
stock  in  irrigation  company  is,  134. 

PETITION, 

for  reargument  of  adjudication  of  priorities  in  Colorado,  103. 
for  writ  of  mandamus  to  compel  delivery  of  water  by  irriga- 
tion company,  131. 
for  organization  of  irrigation  district,  136. 

PLACE, 

of  application  of  water,  50. 
may  be  changed,  50. 

PLEADINGS, 

in  action  for  unlawful  diversion  of  water,  115. 
in  action  to  quiet  title  to  water  rights,  116. 

POLLUTION  OF  WATER, 
action  for,  117. 
as  nuisance,  117. 

POVERTY, 

of  appropriator  no  excuse  for  delay  in  diverting  water,  41. 

PRE-EMPTOR, 

of  land  in  possession  may  maintain  action  for  diversion  of  wa- 
ter, 110. 

PRESCRIPTION, 

riparian  rights  lost  or  acquired  by,  12,  13. 


INDEX.  517 

PRESCRIPTION— Cont'd. 

acquisition  of  water  right  by  appropriation  and  by  prescription 

contrasted,  89. 
how  pleaded,  115. 

see,  also,  "Adverse  User." 

PRIORITY, 

origin  of  doctrine  of,  23,  52. 

as  between  appropriator  and  settlers  on  or  grantees  of  pub- 
lic land,  28-30. 

of  appropriation  confers  superiority  of  right,  52. 
as  between  appropriators  using  water  for  different  purposes,  53. 
as  between  several  appropriators  using  same  ditch,  75. 

PRIVATE  CORPORATIONS, 

irrigation  companies  are,  130. 

PRIVATE  LAND, 

right  to  appropriate  water  on,  determined  by  law -of  state,  28. 

PRIVATE  USE, 

use  of  water  for  irrigation  as,  4,  62. 
taking  of  private  property  for,  4. 

PRORATING  ACT, 
in  Colorado,  121. 

PUBLIC  CARRIERS, 

irrigation  companies  are,  130. 

PUBLIC  CONTROL  OF  IRRIGATION, 
irrigation  subject  to  state  control,  120. 
Colorado  system,  121. 
Wyoming  system,  122. 
in  Nebraska,  123. 
in  Washington,  123. 
in  Nevada,  123. 
in  Idaho,  123. 
in  California,  123. 

public  acequias  in  Arizona  and  New  Mexico,  123. 
municipal  control  in  Utah,  123. 

PUBLIC  CORPORATIONS, 

irrigation  districts  are,  137. 

PUBLIC  DOMAIN, 

what  constitutes,  26. 

see,  also,  "Public  Land." 


518  INDEX. 

PUBLIC  LAND, 

burden  of  proving  land  public  on  appropriator,  25. 

power  to  control  and  dispose  of,  vested  in  United  States,  26. 

acquisition  of  water  rights  on,  26. 

grant  of,  carries  common-law  rights  in  streams/ 26,  28. 

how  existence  of  water  rights  on    is  determined,  27. 

grant  of,  subject  to  vested  water  rights,  28,  29. 

right  of  way  over,  66. 

may  be  included  in  irrigation  district,  136. 

PUBLIC  USE, 

use  of  water  for  irrigation  as,  4,  62,  126. 

PUMPS, 

may  be  used  to  raise  water,  14,  42. 

PURPOSE, 

appropriation  must  be  for  useful,  45. 

of  appropriation  may  be  changed,  45,  77. 

Q- 

QUANTITY  OF  WATER, 

that  may  be  claimed  by  riparian  owner,  15-18. 
that  may  be  claimed  by  appropriator,  54,  56-59. 
how  far  determined  by  capacity  of  ditch,  55,  96. 
determination  of,  in  adjudication  proceedings,  96,  101. 

QUIET  TITLE,  ACTION  TO, 
to  water  rights,  116. 

R. 

RATES, 

see  "Water  Rates." 

RAVINE, 

when  does  not  constitute  watercourse,  32. 
use  of,  as  part  of  ditch,  43. 

REALTY, 

water  right  is,  72,  116. 

REASONABLE  DILIGENCE, 

work  of  diversion  must  be  prosecuted  with,  41. 
required  in  application  of  water  to  beneficial  use,  47. 

REASONABLE  TIME, 

diversion  of  water  within,  41. 
water  to  be  applied  within,  47. 


INDEX.  519 

REASONABLE  USE, 

what  is  a,  of  water  by  riparian  owner,  16. 

consumption  of  entire  flow  of  stream  by  riparian  owner,  not,  17. 

what  is,  by  appropriator,  54,  56,  57. 

bearing  of  point  of  diversion  or  return  on,  20. 

REFEREE, 

proceedings  before,  in  Colorado,  under  adjudication  acts,  102. 

RELATION,  DOCTRINE  OF, 

how  affected  by  statutes  requiring  notice  of  appropriation,  39. 
right  of  appropriator  relates  back  to  commencement  of  work,  5 1 . 

REMEDIES, 

see  "Action." 

REPAIR, 

ditches  must  be  kept  in,  68. 

REPAIRS, 

liability  for,  on  enlarged  ditch,  64. 
liability  of  cotenants  for,  75. 

RES  JUDICATA, 

doctrine  of,  in  adjudication  proceedings,  98,  101. 

RESERVOIRS, 

right  to  construct,  118. 

when  public,  are  internal  improvements,  118,  121. 
use  of  natural  depression  or  bed  of  stream  as,  118. 
liability  of  owner  of,  for  damages  caused  by,  119. 

REVIEW, 

see  "Adjudication  of  Priorities." 

RIGHT  OF  WAY, 

for  ditches,  etc.,  how  acquired,  62. 

condemnation  of,  4,  62. 

right  of  condemnation  limited,  63. 

shortest  route  to  be  taken,  63. 

assessment  of  damages,  65. 

over  public  lands,  66. 

acquisition  of,  by  irrigation  companies,  128. 

acquisition  of,  by  irrigation  district,  138. 

RIPARIAN  LANDS, 

riparian  rights  confined  to,  13. 
defined,  14. 


520  INDEX. 

RIPARIAN  PROPRIETOR, 

may  use  water  for  irrigation,  9,  11. 

has  no  property  in  water  of  stream,  9,  16. 

equality  of  rights  of  several  proprietors,  9,  16,  18. 

who  is  a,  14. 

use  of  water  by,  must  be  reasonable,  15. 

cannot  use  water  to  material  injury  of  lower  proprietor,  16,  17. 

right  of,  measured  by  necessity,  18. 

right  of,  not  measured  by  quantity  of  water  appropriated  or 

used,  18. 
right  of,  must  be  exercised  with  due  regard  to  rights  of  others, 

18. 

relative  rights  of  several  proprietors,  18. 
right  of,  is  property,  24. 

cannot  be  deprived  of  vested  rights  by  state,  24,  125. 
see,  also,  "Riparian  Rights." 

RIPARIAN  RIGHTS, 

doctrine  of,  basis  of  one  system  of  irrigation  law,  6. 

statement  of  doctrine  of,  9. 

in  what  state  doctrine  of  in  force,  10. 

more  liberal  doctrine  of,  as  to  irrigation  in  arid  than  in  moist 
regions,  11,  16. 

not  easements  or  appurtenances,  12. 

annexed  to  soil,  12,  13,  18. 

not  dependent  on  user,  12,  18,  82. 

may  be  lost,  12. 

grant  of,  12,  13. 

condemnation  of,  12. 

lost  by  prescription,  12,  13. 

limited  to  riparian  lands,  13. 

do  not  extend  to  one  not  a  riparian  owner,  13. 

may  be  severed  from  land  by  grant,  condemnation  or  prescrip- 
tion, 79. 

transfer  of,  78,  79. 

see,  also,  "Riparian  Proprietor." 

ROYALTY, 

exaction  of,  by  irrigation  companies  for  water,  illegal,  133. 


s. 


SALE, 

see  "Transfer." 


INDEX.  521 

SETTLERS  ON  PUBLIC  LAND, 

rights  protected  as  against  appropriator,  30. 
see,  also,  "Patentee." 

SOUTH  DAKOTA, 

see  statutes  in  Appendix. 

SPECULATION, 

water  may  not  be  diverted  for  purpose  of,  45. 
SPRINGS, 

waters  of,  may  be  appropriated,  32. 

wrongful  diversion  of  water  from,  60. 
STATE, 

may  authorize  appropriation  of  water,  24. 

cannot  deprive  riparian  owner  of  vested  rights,  24,  125. 

cannot  destroy  right  of  United  States  to  flow  of  water  on  public 
domain,  24,  26. 

power  of,  as  to  navigable  waters,  24. 

may  appropriate   water   under  power   of   eminent   domain,   24, 
note. 

irrigation  subject  to  control  of,  120. 

STATE  CANALS  AND  RESERVOIRS, 
construction  of,  in  Colorado,  121. 
are  internal  improvements,  121. 

STATE  ENGINEER, 

duties  of,  in  Colorado,  121. 
duties  of,  in  Wyoming,  106,  122. 

STATE  LANDS, 

appropriation  of  water  on,  25. 
STATEMENT, 

of  appropriation  to  be  filed,  40. 

in  adjudication  proceedings,  99,  103. 

STATUTE  OP  FRAUDS, 

agreement  to  convey  water  right  within,  80. 
contracts  affecting  water  rights  within,  81. 

STATUTE  OF  LIMITATIONS, 

bar  to  action  for  unlawful  diversion  of  water,  109. 
see,  also,  "Adverse  User." 

STATUTES, 

for  compilation  of,  see  Appendix. 

STOCK, 

in  mutual  companies  represents  water  rights,  124,  134. 


522  INDEX. 

STOCK— Cont'd.  3  * 

in  mutual  companies  assessable,  and  may  be  sold  when  delin- 
quent, 124. 

transfer  of,  as  transfer  of  water  rights,  134. 
shares  of,  not  appurtenant  to  land  irrigated,  134. 
attachment  or  execution  sale  of,  134. 
transfer  as  personal  property,  134. 

STOCKHOLDERS, 

irrigation  company  trustee  for,  124. 

in  mutual  ditch  company  may  enjoin  sale  of  water  to  nonstock- 
holders, 131. 

liability  of  company  to  for  permitting  excessive  diversion  of 
water  by  other  stockholders,  131. 

STORAGE  OF  WATER, 

irrigator  cannot  divert  for   storage  to  prejudice   of  prior  ap- 

propriator,  59. 

the  right  to  store  water,  118. 
law  of  appropriation  applicable  to,  118. 
see,  also,  "Reservoirs." 

STREAMS, 

water  of,  subject  to  appropriation,  31. 
water  may  be  turned  into  and  taken  from,  43. 
see,  also,  "Natural  Streams;"  "Watercourse." 

SUBHUMID  REGION, 
defined,  2. 

SUBTERRANEAN  STREAMS, 

water  of  may  be  appropriated,  33. 

SUCCESSIVE  APPROPRIATIONS, 
of  surplus  water,  58. 
of  water  by  persons  using  same  ditch,  75. 

SUIT, 

see  "Action." 

SUPERINTENDENTS  OF  IRRIGATION, 

to  be  governed  by  decrees  in  distributing  water,  101. 
in  Colorado,  121. 
in  Wyoming,  122. 

SURPLUS  WATER, 

must  be  returned  to  stream  by  riparian  owner,  19. 
manner  of  return  of,  immaterial,  19. 


INDEX.  523 

SURPLUS  OF  WATER— Cont'd. 
point  of  return  of,  20. 
appropriator  has  no  interest  in,  58. 
subject  to  appropriation,  58. 
must  be  returned  to  stream,  58. 

T. 

TAXATION, 

of  ditches  and  water  rights,  76. 

TENANT, 

in  possession  of  land  may  appropriate  water,  35. 

for  years  may  enjoin  unlawful  diversion  of  water,  110. 

TENANTS  IN  COMMON, 

may  agree  to  use  water  by  periods  of  time,  61. 

of  ditches  and  water  rights,  75. 

duty  to  repair  ditch,  75. 

possession  of  one  not  presumed  adverse  to  cotenants,  75,  92. 

one  may  preserve  right  for  all,  85. 

possession  of  one  that  of  all,  92. 

adverse  user  between,  92. 

may,  but  need  not,  join  in  action  for  diversion  of  water,  111. 

TEST, 

of  appropriation  is  application  of  water  to  beneficial  use,  49. 

TEXAS, 

irrigation,  natural  use  of  water  in  arid  portions  of,  3. 
common  law  in  force  in,  10. 

doctrine  of  appropriation  applicable  to  arid  portions  of  state,  25. 
see  statutes  in  Appendix. 

TITLE, 

of  patentee  relates  back,  30,  93. 

to  land  not  necessary  to  support  appropriation,  35. 
TOWN, 

may  be  included  in  irrigation  district,  136. 

TRANSFER, 

of  water  rights  and  ditches,  77-81. 

sale  may  be  for  different  use,  77. 

incipient  rights  may  be  transferred,  77. 

of  water  rights  with  land,  78. 

of  water  eights  separate  from  land,  79. 

of  water  rights  must  ordinarily  be  by  deed,  80. 


524  INDEX. 

TRAN  SFER— Cont'd. 

verbal  transfer,  when  sufficient,  80. 

acknowledgment  or  record  of,  not  necessary  between  parties, 

80. 

of  water  right  as  abandonment,  86. 
of  stock  in  ditch  companies,  134. 

TRESPASSER, 

no  valid  appropriation  by,  35. 

effect  of  use  of  water  by,  on  question  of  appurtenance,  73. 

TRIBUTARIES, 

right  Qf  appropriator  from  stream  to  flow  of,  60. 

u. 

UNITED  STATES, 

control  of,  over  navigable  streams,  24,  34. 

property  of,  in  streams  on  public  land,  26. 

right  to  appropriate  water  on  public  domain  derived  only  from, 

26. 
see  "Acts  of  Congress." 

UNLAWFUL  DIVERSION  OF  WATER, 
see  "Action." 

USE, 

natural  or  artificial,  3. 

relative  importance  of  several  uses  of  water,  3,  53. 

of  water  by  riparian  proprietor,  9,  11. 

right  of  appropriator  dependent  on,  54,  61,  82. 

of  water  may  be  changed,  45,  77. 

see,  also,  "Application  of  Water." 

UTAH, 

common  law  not  in  force  in,  10. 
adjudication  of  priorities  in,  107. 
municipal  control  of  irrigation  in,  123. 
see  statutes  in  Appendix. 

w. 

WASHINGTON, 

adjudication  of  priorities  in,  107. 

public  control  of  irrigation  in,  123. 

see  statutes  in  Appendix. 


INDEX.  525 

WATER, 

ordinarily  no  property  in,  72. 
when  personal  property,  72. 
property  of  public,  120,  126. 

WATER  COMMISSIONERS, 
in  Colorado,  121. 
in  Wyoming,  122. 
in  Washington,  123. 
in  Nevada,  123. 
in  Idaho,  123. 
in  California,  123. 

WATERCOURSE, 

what  constitutes,  32. 
ditch  is  not  a,  32. 

see,  also,  "Streams." 

WATER  DISTRICTS, 
in  Colorado,  121. 
in  Wyoming,  122. 
in  Washington,  123. 

WATER  DIVISIONS, 
in  Colorado,  121. 
in  Wyoming,  122. 

WATER  MASTERS, 
in  Idaho,  123. 

WATER  RATES, 

irrigation  companies  subject  to  control  in  matter  of,  133. 

maximum  rates  to  be  fixed  by  county  commissioners,  133. 

must  be  reasonable  and  just,  133. 

jurisdiction  of  courts  to  review  action  of  commissioners,  133. 

to  be  established  by  district  court  in  Idaho,  133. 

special  contracts  fixing  rates,  133. 

exaction  of  bonus  or  royalty  illegal,  133. 

WATER  RIGHT, 
defined,  1. 

condemnation  of,  12,  127,  128. 
is  property,  72. 
is  real  estate,  72,  116. 
as  appurtenant  to  land,  72,  73. 
of  riparian  owner  corporeal  hereditament,  72 


526  INDEX. 

WATER  RIGHT— Cont'd. 

of  appropriates  incorporeal,  72,  73. 
sale  or  conveyance  of,  77-81. 

see,  also,  "Abandonment;"  "Adverse  User;"  "Appropria- 
tion;" "Appropriator ; "  "Estoppel;"  "Riparian  Proprie- 
tor;" "Riparian  Rights." 

WRIGHT  ACT, 

relating  to  irrigation  districts,  135. 

WYOMING, 

common  law  not  in  force  in,  10. 
adjudication  of  priorities  in,  106. 
public  control  of  irrigation  in,  122. 
see  statutes  in  Appendix. 


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